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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Harrison-Mills v the Public Trustee & Ors [2019] EWCA Civ 966 (11 June 2019) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2019/966.html Cite as: [2019] EWCA Civ 966, [2019] Costs LR 805 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES (ChD)
PROPERTY TRUSTS AND PROBATE LIST
MR. JUSTICE MARCUS SMITH
IN THE MATTER OF THE CHARLES WILLIS HARRISON 1924 SETTLEMENT
BETWEEN:
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MALES
and
SIR TIMOTHY LLOYD
____________________
ANNE-MARIE HELENE HARRISON-MILLS |
Appellant |
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- and - |
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(1) THE PUBLIC TRUSTEE (as trustee of the Charles Willis Harrison 1924 Settlement) |
Respondents |
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- and – |
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(2) GUY CHARLES DAVID HARRISON |
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(3) JUDY TESSA ROSEMARIE MACKAY |
____________________
her husband Dr. Douglas Harrison-Mills
The First Respondent did not appear and was not represented
Ms. Sarah Bayliss (instructed by McLoughlin & Co.)
appeared for the Second and Third Respondents
Hearing date: 27 March 2019
____________________
Crown Copyright ©
Sir Timothy Lloyd :
Introduction
The 1924 Settlement: a summary
The Settlement: the detailed provisions
"upon such trusts and with and subject to such powers and provisions as would for the time being be applicable thereto if the same had devolved on the object or objects in question or on the parent or remoter ancestor of such object or objects under the trusts in default of appointment hereinafter contained."
"Subject as aforesaid the Trustees shall from and after the death of each son or daughter of [Jeannette] stand possessed of his or her share Upon trust if such son or daughter shall die leaving but one child him or her surviving to hold his or her share upon the trusts hereinafter declared concerning the same AND if such son or daughter shall die leaving more than one child him or her surviving Upon Trust to divide his or her share into as many sub-shares as there may be such children of such son or daughter and to appropriate one such sub-share to each of the children upon the trusts hereinafter declared concerning the same."
" PROVIDED always that:
(i) In case the trusts hereinbefore declared concerning any sub-share shall fail then and in every such case … the same sub-share including any further share or shares of another sub-share or sub-shares which may accrue and be added thereto under this present provision shall accrue and be added to the other original sub-share hereinbefore directed to be appropriated in equal proportions and shall be held on the like trusts as are hereinbefore declared concerning such original sub-share so far as the same are capable of taking effect.
(ii) In case the trusts hereinbefore declared concerning any share of a sub-share shall fail then and in every such case … the foregoing provisions of this clause as to the accruer of sub-shares shall apply to such share of a sub-share it and the other shares of the same sub-share being as between themselves treated as sub-shares of the original share out of which they were all derived and subject to the like provisions for accruer and if there shall be a failure of all the trusts of all the shares of any sub-share then the foregoing provisions as to the accruer of sub-shares shall apply.
(iii) And in like manner in case the trusts hereinbefore declared concerning the original share of any son or daughter of [Jeannette] shall fail then and in every such case … the same share including any further share of the original share which may accrue or be added thereto under this present provision shall accrue and be added to the other original shares (if any) in equal proportions and the share or shares which shall so accrue to any original share shall be held upon the like trusts as are hereinbefore declared concerning such original share so far as the same are capable of taking effect. "
"The shares so appropriated and the sub-shares thereof and the shares of such sub-shares and the income thereof respectively shall be held by the trustees upon the same trusts and with and subject to the same powers and provisions as are by and in Clauses 10 to 17 inclusive of these presents declared and contained concerning the original shares, sub-shares and shares of sub-shares thereby dealt with as if such clauses were here repeated but giving to the nephews and nieces of the Settlor (other than [Ralph] who shall have no interest in or power over the Trust Fund or any part thereof) such interests and powers in and over their respective shares as are thereby given to the children of [Jeannette] in and over their respective shares and to the children grandchildren and issue of such nephews and nieces (including the children grandchildren and issue of [Ralph] by his said wife but excluding all other issue of his) such interests and powers in and over their respective shares sub-shares or shares of sub-shares as are thereby given to the children grandchildren and issue of the children of [Jeannette] in and over their respective shares sub-shares or shares of sub-shares and making such other verbal alterations as are necessary for giving effect to this clause. "
The 1953 Order
Discussion
The appeal against the order for costs
"In a large proportion of the summonses adjourned into Court for argument the applicants are trustees of a will or settlement who ask the Court to construe the instrument of trust for their guidance, and in order to ascertain the interests of the beneficiaries, or else ask to have some question determined which has arisen in the administration of the trusts. In cases of this character I regard the costs of all parties as necessarily incurred for the benefit of the estate, and direct them to be taxed as between solicitor and client and paid out of the estate."
"There is yet a third class of cases differing in form and substance from the first, and in substance, though not in form, from the second. In this class the application is made by a beneficiary who makes a claim adverse to other beneficiaries, and really takes advantage of the convenient procedure by originating summons to get a question determined which, but for this procedure, would be the subject of an action commenced by writ, and would strictly fall within the description of litigation. It is often difficult to discriminate between cases of the second and third classes, but when once convinced that I am determining rights between adverse litigants I apply the rule which ought, I think, to be rigidly enforced in adverse litigation, and order the unsuccessful party to pay the costs. Whether he ought to be ordered to pay the costs of the trustees, who are, of course, respondents, or not, is sometimes open to question, but with this possible exception the unsuccessful party bears the costs of all whom he has brought before the Court."
"A fourth category has been recognised where proceedings are commenced by a trustee but have the characteristics of category (3). For not all proceedings commenced by a trustee for the determination of some question affecting entitlement to the trust fund are within Buckton category (1), particularly in a case which does not involve the construction of the trust instrument but rather a dispute over the beneficial ownership of the trust fund. One example of a category (4) case is where there is a hostile dispute between two persons who claim to be the true owner of the trust fund and the trustee intervenes by seeking the determination by the court of the construction of the trust deed."
Conclusion
Lord Justice Males:
Lord Justice Patten: