Davidson & Anor v Seelig & Ors

Permission to make a very late amendment is discretionary and governed by the overriding objective. The applicant must show a real prospect of success, provide a convincing explanation for the delay, and demonstrate why justice requires the amendment. The court must consider prejudice to the opposing parties and other court users, wasted work, the clarity and particularity of the proposed pleading, and the risk to any fixed trial date. A protector’s powers are fiduciary but limited to those conferred by the trust instrument. Protectors do not generally supervise trust administration or seek relief outside the proper exercise of their own powers. A single joint protector lacks standing to seek the removal or replacement of trustees or a co-protector where the relevant powers must be exercised jointly.

The claimants, beneficiaries of two discretionary settlements, challenged the validity of a protectorship regime and the appointment of Michael Haringman as protector. They also sought his removal under the court’s inherent jurisdiction.

Haringman applied shortly before the fixed trial to re-amend his defence and bring a counterclaim seeking removal and replacement of the trustees and protectors, provision of information, and removal of the settlors’ powers to appoint trustees. He also sought specific disclosure concerning trust administration and a payment made from the settlements. The issues were whether the amendments had a real prospect of success, whether Haringman had standing to seek the proposed relief, and whether allowing the amendments would jeopardise the trial.

1. Amendment principles. The proposed amendments were very late. They introduced a substantial new challenge to the administration of the settlements, were insufficiently particularised, lacked an adequate explanation for the delay, and would require further disclosure, evidence and potentially expert evidence. The fixed trial date could not realistically be preserved. Applying the principles in Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm), Swain-Mason v Mills & Reeve [2011] EWCA Civ 14 and Hague Plant Ltd v Hague [2014] EWCA Civ 1609, permission was refused.
2. Prospects and standing. The proposed counterclaim had no reasonable prospect of success. The protectors’ powers under the 2003 Deeds were fiduciary but limited. They did not confer a general supervisory role over trust administration. Haringman, acting alone, could not seek removal or replacement of the trustees or removal of Promenade as co-protector. The statutory standing requirements in sections 41, 57 and 58 of the Trustee Act 1925 were not satisfied. The court also had no inherent jurisdiction to vary the terms of the settlements: Chapman v Chapman [1954] AC 429.
3. The information application was premature and unsuitable for determination before Haringman’s status as protector had been resolved. The specific disclosure application therefore largely fell away, and any remaining disclosure issues were to be raised at the pre-trial review.
4. Haringman’s applications for permission to re-amend and to bring a counterclaim were dismissed. The trial was to proceed in its existing format, subject to the trial judge’s discretion concerning the timing of the removal issue.