St Clair v King & Anor

An appeal court may treat a strike-out application as including summary judgment only where the procedural safeguards and fairness requirements of the summary judgment procedure are met. A litigant must have proper notice and a fair opportunity to respond. A claim should not be summarily dismissed where its factual basis cannot be shown to be fanciful or contradicted beyond question by the available material. Allegations of undue influence, want of knowledge and approval, and testamentary incapacity may require trial where material factual disputes remain. Serious allegations of fraud must be distinctly and properly particularised.

The claimant appealed against the Master’s decision striking out her challenge to the validity of the deceased’s will and awarding indemnity costs. She also sought permission to amend her claim. The appeal concerned procedural fairness, the prospects of the pursued claims, a proposed fraud claim alleging that a beneficiary was an impostor, and new claims based on mutual wills and an alleged agreement with the deceased.

The central issues were whether the Master had been entitled to proceed on a summary judgment basis without a formal application or proper notice, whether the amended claims had realistic prospects of success, and whether the proposed new claims should be allowed.

1. Procedural irregularity. The application before the Master was for strike-out under CPR 3.4(2), but he dismissed the pursued claims by applying the summary judgment test. No formal application for summary judgment had been made, the required notice had not been given, and the claimant had not been told clearly that the court would determine the factual merits on the documents. The Master therefore committed a serious procedural irregularity which rendered the decision unjust.
2. Rehearing. In light of that irregularity, the appeal was properly dealt with as a rehearing under CPR 52.21(1)(b), rather than merely as a review of the Master’s decision.
3. Pursued claims. The undue influence claim had a real prospect of success. The burden was high but civil. The question was whether the deceased acted as a free agent, and the conflicting evidence required assessment at trial. The claims concerning knowledge and approval and testamentary capacity likewise could not reliably be resolved summarily. The court needed to consider the evidence as a whole, including medical records, documentary evidence and oral evidence.
4. Fraud and fraudulent calumny. The allegation that the First Defendant was an impostor was unsupported and was refused permission. Allegations of fraud and dishonesty must be distinctly alleged and properly particularised. The proposed fraudulent calumny allegation was also inadequately particularised because it identified no specific dishonest statements.
5. New claims. Permission was granted for the mutual-wills claim. The existence of the necessary agreement may be established by extrinsic evidence and inferences from the whole evidence. Permission was also granted for the proposed claim based on an alleged agreement between the claimant and the deceased, since its legal novelty made summary determination inappropriate.
6. Disposition. The appeal was allowed. Permission was granted to amend in the form indicated. The indemnity-costs order was set aside. Costs and consequential matters were left for further argument.

• High Court (Chancery Division): appeal from the Master’s decision of 18 January 2017. Appeal allowed on procedural and substantive grounds, with permission to amend granted.