Jonathan Ewan Marcus v Edward Quintin Marcus

In construing a unilateral settlement, the court must identify the objective meaning of the settlor’s words by reference to their natural meaning, the document as a whole, and the relevant background known or reasonably available when it was executed. The word “children” will ordinarily mean biological children and will not include stepchildren or other non-biological children unless the context indicates otherwise. That ordinary meaning may be displaced where the surrounding circumstances show that the settlor intended a defined family group to benefit equally. Parentage is determined on the balance of probabilities by assessing the totality of the evidence. Defects in expert evidence affect its weight rather than necessarily requiring its exclusion.

Jonathan Marcus claimed that Edward Marcus was not Stuart Marcus’s biological son and therefore did not fall within the class of beneficiaries under the SN Marcus Settlement. The settlement benefited “the children and remoter issue of the Settlor”. Edward relied on the wording of the settlement and, in the alternative, on the 2004 deed of appointment and various estoppels.

The principal issues were whether Edward was Stuart’s biological son and, if not, whether “children” included Edward in the circumstances. The court found the paternity issue for Jonathan on the balance of probabilities. It therefore had to determine the construction issue, but issues concerning estoppel and the effect of the deed did not arise.

1. Parentage. The presumption that a child born during a marriage is the husband’s child is rebuttable. Naming the husband on the birth certificate is prima facie evidence but is not determinative. The court must assess the totality of the evidence and decide whether the balance of probabilities is satisfied.
2. The Cellmark DNA report did not comply fully with Civil Procedure Rules 1998, rule 35.10 and the applicable Practice Direction. Nevertheless, permission had been given for evidence from Cellmark, the report’s methodology and conclusions were not materially challenged, and the objection to form was raised late. The report was therefore admitted and given due weight without a reduction for formal defects.
3. The court applied the objective approach to construction summarised in ABC Electrification Ltd v Network Rail Infrastructure Ltd [2020] EWCA Civ 1645. The same approach applies to a unilateral settlement, with the settlor substituted for the parties. The court must begin with the language used, viewed in its documentary, factual and commercial context, and must not use hindsight or subjective intention.
4. “Children” ordinarily means biological children and does not include stepchildren or a “child of the family” without wording or context extending the meaning. The court did not find it useful to decide the issue by reference to whether “children” is a legal term of art.
5. In this settlement, the relevant context displaced the ordinary meaning. Stuart and Patricia had raised Edward and Jonathan as brothers; Stuart believed both were his sons; further children were highly unlikely; and the settlement’s purpose and structure indicated no intention to treat them unequally. “Children” therefore referred objectively to Edward and Jonathan, rather than to Edward and Jonathan only if they were biologically Stuart’s sons.
6. The court found that Stuart was not Edward’s biological father. The construction issue was decided in Edward’s favour. Issues 4 to 8 were unnecessary, and the form of order was reserved for consideration after judgment.