Fuller v H F T Gough & Co Ltd

Particulars of claim must identify the facts establishing the cause of action, including duty, breach, causation and loss in a negligence claim. A vague or incoherent pleading may be struck out, although the court should consider whether amendment can cure the defect. A claim may also be abusive where it seeks to relitigate a liability already determined in earlier proceedings.

A beneficiary ordinarily has no personal negligence claim against the solicitor who drafted a defective will where the loss is suffered by the estate. The remedy belongs to the estate through its personal representatives. A beneficiary’s own costs incurred in unsuccessfully defending rectification proceedings are not recoverable where they result from the beneficiary’s own decision to contest the proceedings.

The claimant, a beneficiary under his late mother’s will, sued the solicitors who drafted it. He alleged that negligent drafting caused expenses connected with proceedings to rectify the will and claimed £5,000.

The defendant applied to strike out the claim under CPR 3.4 or obtain reverse summary judgment under CPR 24.2. It argued that the claim disclosed no recognised cause of action, was abusive because the relevant costs liability had already been determined in the rectification proceedings, and had no real prospect of success because there was no duty, the loss fell outside the scope of any duty, and causation was absent.

1. Strike out for defective pleading. The particulars of claim did not set out a sustainable cause of action. They gave a chronology but failed to plead how a duty was owed to the claimant personally, how it was breached, and what loss personally flowed from the breach. Particulars of claim must state succinctly the facts relied upon so that the opposing party can understand and meet the case. The claimant had sufficient opportunity to amend, and a further opportunity would be disproportionate.
2. Abuse of process. The claimant sought recovery of the £5,000 liability imposed in the rectification proceedings. That liability had already been determined by a competent court to be attributable to his decision to defend those proceedings. The claim therefore amounted to abusive relitigation and was struck out in its entirety.
3. Reverse summary judgment. Even if the pleading defect were put aside, the claim had no real prospect of success. Applying Worby v Rosser [2000] PNLR 140 (CA), any loss caused by the defective will was loss to the estate. The relevant duty vested in the personal representatives on death. A beneficiary ordinarily has no independent personal claim, although a derivative claim may be available in special circumstances to enforce duties owed to the estate.
4. The alleged loss also fell outside the scope of any assumed duty to a beneficiary. Applying Carr-Glynn v Frearsons [1999] Ch 326 (CA), such a duty could not extend beyond taking care to give effect to the deceased’s testamentary intentions, and the claimed costs arose from the claimant’s own decision to contest rectification. Causation failed as well.
5. The defendant was entitled to reverse summary judgment on the whole claim because there was no other compelling reason for a trial.

First-instance application. The judgment records earlier rectification proceedings before Master Price and an order of Rose J dated 28 July 2017 varying the costs exposure, but this was not an appeal from those decisions.