Richard Wood & Anor v Sophie Fleming

The High Court has probate jurisdiction over English property forming part of an estate, regardless of the deceased’s domicile. A stay on forum non conveniens grounds requires the applicant to show that an available alternative forum is clearly or distinctly more appropriate, subject to the interests of justice.

For harassment under the Protection from Harassment Act 1997, the court assesses the cumulative course of conduct objectively. Online publication may amount to harassment where persistence, oppression, targeting, professional consequences and harm to third parties go beyond legitimate criticism. Where freedom of expression is engaged, an interim publication injunction requires that success at trial is likely, meaning more likely than not. The court may tailor prohibitory and mandatory relief proportionately.

The proceedings arose from disputes concerning the will of Brendan Fleming, his English law firm and the conduct of its executors, Richard Wood and Rebecca Ward. Sophie Fleming challenged the validity of the will, the executors’ conduct and the jurisdiction of the English courts. The executors sought an injunction restraining alleged harassment by online publications and communications.

The court considered probate jurisdiction, forum non conveniens, summary judgment, removal of executors, interim administrators, the appointment of a litigation friend, jurisdiction over a defendant domiciled in Northern Ireland, and the interaction between harassment, freedom of expression and interim injunctive relief.

1. Probate jurisdiction and forum. Under section 25 of the Senior Courts Act 1981, the High Court had jurisdiction over the probate proceedings because the estate included substantial English property. Domicile was not the governing jurisdictional test. Northern Ireland was not shown to be an available or clearly more appropriate forum, and Turkey was not clearly or distinctly more appropriate, particularly because the will was prepared in England, the executors and much of the estate were in England, and the applicable law was materially similar. No stay was granted under the Spiliada principles.
2. Summary judgment and probate issues. Testamentary capacity and knowledge and approval were evidential questions for trial. The executors therefore had a real, rather than fanciful, prospect of proving the will valid. The allegations that they had acted criminally or professionally improperly had no real prospect of success and were summarily rejected.
3. Executors and litigation friend. The application to remove the executors under section 50 of the Administration of Justice Act 1985 was refused. The alleged impasse had been created by Ms Fleming, the executors had done nothing wrong, and the testator’s choice of executors deserved respect. An independent administrator pending suit was appointed. Ms Fleming was unsuitable to act as litigation friend because she could not fairly conduct the proceedings, had a potential conflict of interest and had not undertaken to meet adverse costs. Trevor Fleming was appointed instead.
4. Harassment and injunction. The cumulative online campaign, regulatory complaints and communications had a real prospect of amounting to harassment under section 1 of the Protection from Harassment Act 1997. The conduct was targeted, persistent and potentially oppressive. Applying the heightened test required by section 12 of the Human Rights Act 1998, the executors were more likely than not to obtain a final injunction, notwithstanding Article 10 ECHR. The injunction was continued and adjusted to prohibit allegations of criminal or professional misconduct, protect confidential information and require removal of relevant publications. Protection was extended to the executors’ lawyers under section 37 of the Senior Courts Act 1981, but not to BFL employees without a representative-party application.

First-instance decision. No appellate history is stated in the judgment.