Court rejects application for Norwich Pharmacal order in the Magomedov litigation
The Commercial Court has rejected an application by the Claimants in the Magomedov litigation – a $14 billion claim concerning alleged unlawful means conspiracies and bribery – for a Norwich Pharmacal order against three financial services companies, following the hearing of jurisdiction challenges and of the Claimants’ substantive application for Norwich Pharmacal relief, at a two-day hearing before Jacobs J.
In the case of the First Respondent, the Court held that an order for alternative service by email in Liechtenstein should be set aside as being positively contrary to Liechtenstein law. Although the Court did uphold a separate order for alternative service in the UK, the substantive application failed because of the likelihood that the provision of information would be contrary to Liechtenstein law, with the Court concluding that the First Respondent “as a third party which is not alleged to have been a wrongdoer, should not be subject to speculative and unprecedented litigation” in Liechtenstein.
As against the Second and Third Respondents, the Court concluded that they had not been mixed up in the wrongdoing and so the Norwich Pharmacal applications against them failed for this reason.
Bobby Friedman and Rachael Earle acted for the successful First Respondent, instructed by Sue Thackeray, Laurence Clarke and Phoebe Alexander of Kingsley Napley.
Court of Appeal hands down Judgment in Important Costs Case
On 22 October 2024 the Court of Appeal handed down judgment in an important case concerning the jurisdiction to award costs in proceedings in the First Tier Tribunal (Property Chamber) (‘F-tT’) and the Upper Tribunal.
Under Rule 13 of the relevant Tribunal Rules, costs can, essentially, only be awarded against another party where that party has ‘acted unreasonably in bringing, defending or conducting proceedings’. There is an equivalent rule for the Upper Tribunal, which is identically worded.
The case of Lea and Others v GP Ilfracombe Management Co Ltd now becomes the definitive ruling as to what ‘unreasonably’ means in this context.
The Court of Appeal allowed the appeal from the Upper Tribunal (‘UT’). The UT had itself dismissed an appeal against the ruling of the F-tT – which had refused to order costs to the successful appellant tenants, following the total failure of the respondent landlord’s service charge application. That substantive application related to service charge demands which the respondent had served on the appellants, totalling around £2.4M. In dismissing the proceedings entirely, the F-tT had found that the demands had been served without any genuine belief that the sums were correct. Yet the F-tT had refused to award costs in the tenants’ favour, despite this finding. The UT upheld their decision, agreeing that the ‘unreasonableness’ threshold had not been crossed.
The Court of Appeal, in allowing the appeal, made clear that ‘unreasonably’ in Rule 13 was not to be equated only with ‘vexatious’ or ‘harassing’ behaviour. Such an interpretation was much too restrictive. UT and F-tT decisions, suggesting that this was the threshold test, were wrong. Unreasonable behaviour includes vexatious, abusive and harassing behaviour but is not limited only to such behaviour.
The Court of Appeal further clarified that the UT had not intended, in the Willow Court case (which, until now, has been the leading case on Rule 13 costs) to state a threshold test which confined the rule only to abusive/harassing behaviour. Affirming Willow Court, the Court of Appeal stated that: ‘a good practical rule is for the tribunal to ask: would a reasonable person acting reasonably have acted in this way? Is there a reasonable explanation for the conduct in issue?’. The Court also made clear that further guidance on the threshold test, or its application, would not be helpful.
Martin Hutchings KC acted for the successful appellants – instructed by Michael Green and Harriet Muffett of Trowers & Hamlins LLP.
“The set as a whole is the pinnacle of the London Bar” – Wilberforce excels in the 2025 rankings
We are delighted to announce our continued success in the latest editions of Chambers & Partners and Legal 500, highlighting collective strength across our core practice areas and the expertise and experience of members of Chambers and staff.
Chambers and Partners UK
We are recognised as a leading chambers in 12 areas (below), including five top-ranked set rankings. Overall, we have achieved a record 170 barrister rankings, which includes 23 new and improved individual rankings.
Full coverage in the 2025 guide can be found here.
Leading set rankings
- Chancery: Commercial (Band 1)
- Chancery: Traditional (Band 1)
- Charities
- Commercial dispute resolution
- Company
- Fraud: Civil
- Offshore (Band 1)
- Pensions (Band 1)
- Professional negligence
- Real estate litigation (Band 1)
- Restructuring and insolvency
- Tax: Private client
Legal 500
We have two top-tier set rankings and are recommended as a leading set in a further seven practice areas. We have achieved 147 barrister rankings this year including 26 new and improved entries.
Full coverage in the 2025 guide can be found here.
Leading set rankings
- Commercial Litigation
- Company
- Fraud: Civil
- Insolvency
- Pensions (Tier 1)
- Private Client: Trusts and Probate (Tier 1)
- Professional Negligence
- Property Litigation
- Tax: Personal
A big thank you to all our clients for their feedback and ongoing support!
Commercial Court grants Norwich Pharmacal order in Filatona Trading and Oleg Deripaska v Quinn Emanuel Urquhart & Sullivan UK
On 14 October 2024 the Commercial Court handed down judgment in Filatona Trading Limited and Oleg Deripaska v Quinn Emanuel Urquhart & Sullivan UK LLP [2024] EWHC 2573 (Comm). Mr Justice Calver acceded to the Claimants’ application for a Norwich Pharmacal order where the defendant law firm had obtained from an unnamed business consultancy a report which was subsequently deployed in s.68 proceedings against the Claimants with a view to setting aside an arbitration award. The report was subsequently revealed to be a forgery. The judgment contains a very interesting analysis of the circumstances in which a law firm might become amenable to a Norwich Pharmacal order and the extent to which privilege might bar such relief.
Thomas Grant KC led James Sheehan KC of Essex Court Chambers, who were instructed by Mark Hastings, Abigail Healey and Emma Kingstone of Quillon Law.
High Court hands down judgment on Jaffé v Greybull Capital LLP
The High Court handed down judgment on Jaffé v Greybull Capital LLP [2024] EWHC 2534 (Comm), following a 3-week, multimillion-pound Commercial Court fraud claim brought by the insolvency administrator of Wirecard.
The Claimants had sought c. £12m in damages for deceit, alleging that a deliberate oral misrepresentation at a meeting in 2016 led to Wirecard Bank extending credit to Monarch Airlines (which subsequently became insolvent). Mrs Justice Cockerill DBE dismissed the case in its entirety. In her judgment, she considered the conflicting accounts of two “equally patently honest and truthful witnesses”, the inherent probabilities and the surrounding circumstances, and, notwithstanding a near-contemporaneous note of the meeting taken by one of the Claimants’ witnesses, concluded that the alleged misrepresentations had not been made. The Judge agreed with the Defendants that German law applied to the claim and considered and applied the German law of causation, concluding that even if the misrepresentations had been made, they had not been relied upon.
Of particular interest is the Judge’s consideration of “Gestmin” and the matters raised by Popplewell LJ in his 2023 COMBAR lecture “Judging Truth from Memory”.
John Wardell KC, instructed by Andrew Head, Bryan Shacklady and David Young (Forsters LLP) and leading Thomas Elias (Serle Court), acted on behalf of the successful Defendants.
Cayman Grand Court grants case management stay in TFKT True Holdings
On 3 October 2024 the Grand Court of the Cayman Islands (FSD) granted a case management stay of a just and equitable winding up petition in the case of Re TFKT True Holdings pending the resolution of separate proceedings in Hong Kong between the same parties to the petition. The judgment of Hon Justice David Doyle contains a comprehensive survey of the now very well-developed Cayman law on case management stays, which has become a very important aspect of Cayman procedural law.
Thomas Grant KC, instructed by Anna Peccarino, Ian Huskisson and Ray Ng of Travers Thorp Alberga, acted for the successful respondent.
Benedict Evans joins Wilberforce Chambers as a tenant
Wilberforce Chambers is pleased to announce that Benedict Evans will join Chambers as a tenant from Tuesday 1st October 2024, following the successful completion of his pupillage.
Benedict’s practice will cover all areas of Chambers’ core specialisms, including commercial dispute resolution, insolvency, pensions, professional liability, property, and trusts, tax, probate and estates. During pupillage, he gained experience at all stages of litigation and arbitration.
Nicholas Luckman, Practice Director, commented: “We are delighted that Benedict has accepted our invitation to join Wilberforce as a tenant. I wish him all the best and I am confident he will excel in developing his practice and will be a valuable addition to Chambers.”
All enquiries in relation to Benedict’s previous work and availability to accept instructions should be directed to his practice managers; Danny Smillie, Jessica Edson and Jake Walker.
Testamentary capacity: warning signs and professional best practice
Article by Simon Atkinson, 30th September 2024
To read or download this article as a PDF, please click here.
The recent decision of Joanna Smith J in Leonard v Leonard [2024] EWHC 321 (Ch) is instructive for private client practitioners, non-contentious and contentious alike. The validity of a will was disputed on the grounds of lack of testamentary capacity and want of knowledge and approval. The case stands out for its unusual facts, of how warning signs were missed, of how a professional will drafter failed to comply with repeated client instructions for a simple will, and of how the court will be aided (or not) by ex post facto expert evidence.
Facts
The testator, Dr Jack Leonard, executed a will at home in October 2015 without any professional supervision. Jack was in his early 80s at the time. The children of Jack’s first marriage invited the court to pronounce against the validity of this will and to admit to probate an earlier will made in 2007, which it was common ground was valid. The later will bequeathed a substantial portion of Jack’s estate to his second wife and his step-children and step-grandchildren. The later will was held by Joanna Smith J to be invalid.
A very detailed picture of the testator emerged from the evidence. Jack had been a successful and wealthy businessman. He retired in the mid-1990s, shortly after which his first wife died. He remarried in the late-1990s. Jack had been very generous to his children over the years, including gifting a house in Brighton to one of his daughters in the mid-1990s and paying for the long-term medical treatment in the US for one his children. In 2013 he settled some money into trust for his second wife and in 2014 gifted some money to one of his step-grandchildren. Although the validity of these 2013 and 2014 gifts had initially been in issue in the proceedings, by the time of trial this was no longer challenged by reason of the expert evidence.
Jack was obviously a very astute person both in business and his personal affairs. In 2012 and 2013 he had engaged with tax advisors about possible new French, English and US wills in which jurisdictions he had substantial assets. As the Judge observed, there was clear evidence of Jack having a good level of cognitive function at this point in time: [187].
From around mid-2013, however, there were early signs of cognitive decline, including a change of behaviour which had been noted at a family wedding in the summer of 2013.
It was in October 2013 that Jack and his second wife instructed a will drafter, a chartered tax advisor, to prepare their wills. Jack had indicated that he wanted a simple will that left everything to his wife, trusting (as the Judge found) that his wife would carry out his stated wish that four-fifths of his estate should go to his children: [217].
The will took two years to finalise and went through repeated drafts. Over this time, there were numerous changes to Jack’s instructions and, as the Judge found, some of these were inconsistent with each other or contained factual inaccuracies. Contrary to the clear instructions to prepare a simple will, the will drafter had in fact prepared complicated documents, and as was apparent from some of the correspondence from the testator, he had not understood some of these complicated provisions.
The evidential exercise of determining capacity and knowledge and approval was complicated somewhat by the lack of detailed recollections of the parties who witnessed the signing of the will in October 2015 and by the fact that Jack’s wife had, by the time of proceedings, herself lost capacity so was unable to give evidence. The Judge held that she was “unable to attach any weight” to the will drafter’s evidence that she, the will drafter, was “totally satisfied” that Jack had testamentary capacity. The will drafter had not thought to consult her supervisor, to see Jack alone or to apply the Golden Rule, even when it was clear that Jack was struggling to understand the provisions of the draft will: [428]. Importantly, the will drafter had only met Jack in person twice during the period in question and she had not met or spoken to him (except via email) for almost a year prior to the execution of the will. The mistakes which the will drafter made in the drafting of the wills were found to have had a negative impact on his will-making ability and his overall understanding: [429].
So far as the medical evidence was concerned, there was a large degree of agreement between the experts. Neither had examined Jack in his lifetime and neither was able to say with certainty whether Jack had testamentary capacity at the relevant time. They agreed that Jack was suffering from dementia, probably mixed Alzheimer’s and vascular dementia, at the time of the making of the disputed will. They also agreed on certain medical matters concerning the impact dementia can have on executive function and on the interpretation of a detailed neuropsychological assessment which had been carried out on Jack in August 2015, some two months before the disputed will was executed.
The Judge noted that she was “initially concerned that the court could derive little, if any, assistance from such an exercise and that concern was not much dispelled when I heard the experts give their oral evidence”. She emphasised that only very limited assistance could be gained from the experts’ respective views of individual documents, particularly when those views were given without any clear understanding of the totality of the evidence. The Judge stressed that ultimately it was for the court, not an expert witness, to determine what, if any, inferences should be drawn from the documentary and other evidence when seen in context: [135] – [141].
Having considered all of the evidence the Judge concluded that Jack did not have testamentary capacity in October 2015: [447] – [479]. The Judge also concluded that Jack did not know or approve of the will: [481] – [483]. Given the errors in the will itself, the provisions in any event did not reflect the choices Jack had made or his testamentary intentions in relation to one of his children, so he could not have known or approved of its contents: [483].
Analysis and lessons
The case is important for practitioners in several respects. First, the Judge undertook a detailed consideration of the test in Banks v Goodfellow (1869-70) LR 5 QB 549. The Judge confirmed that it contains four separate elements (notwithstanding a recent paraphrasing of the test by the Court of Appeal in Hughes v Pritchard [2022] Ch 339 which had only identified three separate limbs).
The four limbs are as of course as follows (per Cockburn CJ in Banks):
“It is essential… that a testator (i) shall understand the nature of the act and its effects, (ii) shall understand the extent of the property of which he is disposing; (iii) shall be able to comprehend and appreciate the claims to which he ought to give effect; (iv) and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”
Joanna Smith J confirmed that the fourth limb is indeed separate from the third: [155].
The Judge also reiterated a number of important principles regarding testamentary capacity under English law. First, the law is not that a person suffering from reduced cognitive abilities owing to a mental illness does not have testamentary capacity. Secondly, the Banks test concerns the ability / capacity to understand; it does not require actual understanding or recollection; it does not require the testator to compile a mental inventory or valuation of all his assets; forgetting details about his assets, or the names of relatives or the terms of a past will does not necessarily equate to a lack of capacity; and there is no requirement to understand the collateral consequences of a disposition as opposed to its immediate consequences: [152]. Relevant evidence as to capacity may derive from the circumstances at the time of the execution of the will itself, as well as events prior to and after the execution of the will. The Judge emphasised that the Banks test is obviously transaction and issue specific. The testator must have the mental capacity to understand the particular transaction and its nature and complexity. That encompasses the complexities in the will itself (limb 1), the complexities of the testator’s property (limb 2) and the complexities of the moral claims on the testator’s estate (limb 3): [152].
The Judge’s exegesis on Banks is an important restatement and explanation of what the test does require (and just as importantly what it does not). On the particular facts of this case, the Judge concluded that limbs 1 and 4 were not satisfied, although limbs 2 and 3 were: [447] – [476].
The case is also critically important reading for will drafters. The will drafter in this case was subject to significant criticism. Basic procedures were not followed and obvious warning signs were not spotted. A few important steps, which seem obvious when stated but are so often overlooked in practice, were missing here and should always be at the forefront of will drafters’ minds.
First, if in doubt a capacity assessment should be undertaken (though note of course that a failure to follow the Golden Rule is not determinative of whether a testator had capacity: see Rina v Shun [2024] HKCFI 1025). Secondly, hold an in person meeting shortly before execution of the will (or even better at the time of execution). Thirdly, make sure the terms of the will accord with a testator’s instructions; if it does not, not only is this likely to be a professional failing in itself (unless there is a proper reason for diverging from the same, which will need to be explained to the testator) but it may well (as it did here) damage the testator’s ability to understand the document and to give his knowledge and approval to the same.
As is often the case with probate disputes, had proper procedures been followed, it is very likely this case would never have reached trial. No will drafter wants to be the subject of this sort of High Court scrutiny. Leonard v Leonard provides a warning and lessons to all.
For more information:
- Our Trusts, probate and estates: contentious expertise.
- Our Trusts, probate and estates: non-contentious expertise.
The views expressed in this material are those of the individual author(s) and do not necessarily reflect the views of Wilberforce Chambers or its members. This material is provided free of charge by Wilberforce Chambers for general information only and is not intended to provide legal advice. No responsibility for any consequences of relying on this as legal advice is assumed by the author or the publisher; if you are not a solicitor, you are strongly advised to obtain specific advice from a lawyer. The contents of this material must not be reproduced without the consent of the author.
Sri Carmichael wins Chancery Junior of the Year at Legal 500’s UK Bar Awards 2024
We are delighted to congratulate Sri Carmichael on winning ‘Chancery Junior of the Year‘ at last night’s Legal 500’s UK Bar Awards 2024.
A huge thank you to all our clients for your ongoing support of Wilberforce Chambers.
Congratulations to the rest of the winners.
Leicester Square Ltd & ors v Empire Cinema [2024] EWHC 2294 (Ch)
On 10th September 2024, the High Court dismissed the landlord’s appeal in Leicester Square Ltd & ors v Empire Cinema [2024] EWHC 2294 (Ch).
Jonathan Seitler KC and Benjamin Faulkner, instructed by Maples Teesdale, acted for the successful tenant Respondent.