Fielden v Christie-Miller & Ors

Permission to amend a statement of case to introduce a new claim requires the proposed claim to have a real prospect of success, meaning more than a merely arguable prospect. The court must avoid conducting a summary trial, while considering the contemporary documents and the overriding objective.

For rectification of a formally executed will, the claimant must overcome the weighty presumption that the executed document reflects the testator’s intentions. Convincing evidence, going beyond speculation, is required. A trustee is not required to remain neutral when the trustee’s own conduct is challenged in hostile litigation. Common representation does not establish that trustees authorised or adopted one trustee’s alleged representations.

The proceedings concerned the succession to the Swyncombe Estate and Stephen Christie-Miller’s Part 20 claim against Samuel Fielden and the trustees. Stephen sought permission to rely on a revised pleading containing a proposed rectification claim, a claim for removal of the Settlement trustees, and amendments to his proprietary estoppel case.

The rectification claim arose from documents disclosed in April 2015. Stephen contended that John Christie-Miller had mistakenly executed an earlier engrossment of his will, thereby including Sam within a discretionary class of beneficiaries. He also sought permission under section 20(2) of the Administration of Justice Act 1982 to bring separate rectification proceedings more than 15 years after probate, and permission to use disclosed material in those proceedings.

The central issues were whether the proposed claims had a real prospect of success, whether the trustees should be removed for alleged partiality, and whether the remaining amendments were adequately pleaded.

1. Amendment threshold. The test for permission to introduce a new claim was the same as the summary judgment test under CPR 24. The claim had to have a real prospect of success, rather than being merely arguable. The court should not conduct a summary trial, but should consider whether the claim was inherently implausible, unsupported by contemporary documents or purely speculative, together with prejudice, proportionality and the overriding objective.
2. Rectification. Rectification of a formally executed will requires the claimant to overcome the substantial presumption that the will expresses the testator’s intentions. The material before the court did not give Stephen a real prospect of proving by convincing evidence that John had executed the wrong engrossment. The attendance note and surrounding correspondence made the claim arguable but essentially speculative. Even evidence that the solicitor later believed that the wrong engrossment had been executed would not establish John’s intention at the time of execution.
3. The alternative argument that the trustees acted in breach of duty by failing to take account of their belief that the wrong will had been executed also failed. Unless the will were rectified, Sam was properly within the eligible class and the trustees would have considered an irrelevant factor if they discounted his claim. If rectification were established, the trustees could not appoint in favour of Sam beyond the permitted class.
4. Trustee removal. The proposed removal claim had no real prospect of success insofar as it relied on the same mistaken-will argument. The trustees were entitled to defend hostile litigation challenging their own conduct. Their application to strike out the claim did not breach any duty of neutrality. They could have sought a Beddoe order, but their decision instead to defend the claim with an indemnity from Sam was not objectionable.
5. The court allowed the revised pleading only to the extent not identified for removal in the judgment. It disallowed the rectification and trustee-removal claims and paragraph 48 concerning common representation and the omnia praesumuntur rite esse acta presumption. It dismissed the applications for permission to bring separate rectification proceedings and to use disclosed material in them. Costs orders were made, or left to be finalised, substantially against Stephen.

First-instance decision. The judgment refers to earlier decisions in the same litigation, [2015] EWHC 87 (Ch) and [2015] EWHC 752 (Ch), concerning the adequacy of Stephen Christie-Miller’s Part 20 claim.