Supreme Court refuses to allow man to sue brother’s solicitors over Will

In May 2010, the Supreme Court refused to allow a man to sue his brother's solicitors in a dispute over their grandmother's Will. To allow this, they would have had to agree to lift the limitation period, within which claims must be brought.

Mark Roberts claimed that, under the Will, his brother John had to pay all the inheritance tax due on the estate in return for the bequest of a farm in Devon.

The court heard that John, who became administrator of the Will, instructed Gill & Co, based in Ilford, Essex, and Whitehead Vizard, based in Salisbury.

He paid enough IHT to obtain the grant of letters of administration, but not the remaining amount, which, the court heard, was estimated at £100,000 including interest.

John, as personal representative, transferred the farm to himself as beneficiary and sold it for £305,000, keeping £285,000 after liabilities were paid.

Giving judgment in Roberts v Gill & Co and others [2010] UKSC 22, Lord Collins said Gill & Co acted for John on the grant of administration "and (it seems) on preparation of the assent". Whitehead Vizard acted for him on the sale of the farm.

"There is no doubt that this was a claim by Mark Roberts personally for loss suffered by him as a beneficiary," Lord Collins said.

Mark issued proceedings at Plymouth County Court in 2002 against the two firms of solicitors for breach of duty of care owed to him as beneficiary of the grandmother's estate.

Whitehead Vizard wrote to him the following year, rejecting the claim on the grounds there was no duty of care between a solicitor instructed by a personal representative and a beneficiary.

Lord Collins said it was not until august 2006 that Mark applied to amend the proceedings, to continue them both in his personal capacity and as a derivative action on behalf of the estate.

This was more than three years since the expiry of the limitation period and nine years since the sale of the farm by John.

"The question on this appeal is whether Mark Roberts should be permitted to amend so as to put his claim as a derivative claim," Lord Collins said.

"That involves two further questions. The first question is whether the amendment can be made notwithstanding expiry of the limitation period in respect of his personal claim".

"The second question is whether, even if the expiry of the limitation period is not a bar to the necessary amendments, the claim is bound to fail because there are no special circumstances justifying a derivative action."

The High Court held that there were no special circumstances. The Court of Appeal ruled by a majority that there were special circumstances, but the claim was time-barred.

Lord Collins dismissed the appeal "on the ground that the Court of Appeal was right to hold that the amendment to pursue a derivative claim was not permitted by the CPR after the expiry of the limitation period".

He said that, had the point arisen, the judge was right to conclude that there were no special circumstances.

Lords Rodger and Walker agreed with Lord Collins that the limitation period applied, for similar reasons. However, Lords Hope and Clarke preferred not to rule on whether the amendment to the proceedings was time-barred, but held that no special circumstances arose.

"It may well be inappropriate, or even (depending upon the circumstances) wrong in principle, to grant an application for permission to amend to change the capacity in which a claimant has been proceeding, but the court would have the power to do so if it appeared just in all the circumstances," Lord Clarke said.

"I see no reason why the court should not have that power where the new claim arises out of the same or substantially the same circumstances as the existing claim. In this regard it is I think significant that the power is included in a limitation statute".

"The purpose of such a statute is to protect the defendant against whom a stale claim is made. On the other hand, the staleness of the claim is likely to be of less significance where the new claim arises out of the same or substantially the same facts as the original claim."

Reproduced from an article in The Solicitors Journal, 16th May 2010.