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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Knipe v British Racing Drivers' Motor Sport Charity & Ors [2020] EWHC 3295 (Ch) (03 December 2020) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2020/3295.html Cite as: [2020] EWHC 3295 (Ch) |
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BUSINESS AND PROPERTY COURTS IN BRISTOL
PROPERTY TRUSTS AND PROBATE LIST (ChD)
2 Redcliff Street, Bristol, BS1 6GR |
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B e f o r e :
(sitting as a Judge of the High Court)
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JAMES FRANCIS KNIPE |
Claimant |
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- and - |
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(1) THE BRITISH RACING DRIVERS' MOTOR SPORT CHARITY (2) THE BRITISH RACING DRIVERS' CLUB (3) THE ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (RCN 219099) (4) CANCER RESEARCH UK (RCN 1089464) (5) WORLD CANCER RESEARCH FUND (RCN 1000739) (6) KATHRYN MARY MARSHALL |
Defendants |
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Application on paper only
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Crown Copyright ©
HHJ Paul Matthews :
Introduction
"(1) Declarations that on a proper construction of the Will of Barrie Russell Williams dated 26 February 2014:
(a) The First Defendant is the sole person entitled under the gift of residue to 'The British Racing Drivers Club Benevolent Fund' under clause 8(a) of the Will;
(b) The Claimant holds the first of residue to the 'Cancer Research Fund' under clause 8(d) of the said will upon trust for the charitable purpose of funding cancer research; alternatively
(c) The first of residue to the 'Cancer Research Fund' under clause 8(d) of the said Will fails, but shall be held by the claimant upon a scheme cy-près upon terms to be determined by the court or to be referred to the Charity Commission pursuant to section 69(3) of the Charities Act 2011;
(2) A declaration that the Claimant shall be at liberty to distribute that part of the estate mentioned under clauses 3 and 5 of the said Will prior to the resolution of the Sixth Defendant's claim under the Inheritance Act Provision (tbc) (for Dependants & Family) Act 1975 currently proceeding in the Oxford County Court under claim number F000OX602;
(3) If and in so far as necessary, orders pursuant to CPR 19.8A directing service of this claim or any judgment or order made in this claim upon any person who may be affected by it, and/or orders pursuant to CPR 19.7 appointing a person to represent any other person or persons who cannot easily be ascertained;
(4) An order that the Claimant's costs of and occasioned by this application shall be met from the estate of the deceased on an indemnity basis;
(5) Further or other relief as the court thinks fit … "
Summary judgment
"The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –
(a) it considers that –
[ … ]
(ii) the defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial."
"95. … The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman, at p 95, that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all."
"12. In my view the judge should have followed his original instinct. It is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better."
Facts
"(a) as to Fifty per cent thereof to the British Racing Drivers Club Benevolent Fund;
(b) as to Thirty per cent thereof to the British Racing Drivers Club absolutely, but with the request that the monies be held as the 'Barrie Williams scholarship fund' and used at the discretion of the club to provide for an annual scholarship for the training of young racing drivers;
(c) as to Ten per cent for the Royal Society for the Prevention of Cruelty to Animals;
(d) as to Ten per cent for the Cancer Research Fund."
The construction of wills
"(1) This section applies to a will—
(a) in so far as any part of it is meaningless;
(b) in so far as the language used in any part of it is ambiguous on the face of it;
(c) in so far as evidence, other than evidence of the testator's intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.
(2) In so far as this section applies to a will extrinsic evidence, including evidence of the testator's intention, may be admitted to assist in its interpretation."
"19. When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party's intentions. [ … ]
20. When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context. [ … ]"
Clause 8(a)
Clause 8(b)
"B2.2 It is not always obvious whether a gift is a gift for particular purposes (a purpose gift) or whether it is a gift to a particular institution. Where a gift is a purpose gift, the executors can decide for themselves how best to dispose of the legacy so as to further the relevant charitable purposes. In the case of a gift to an unincorporated charity, this can often be regarded as a gift for the particular charitable purposes of that charity rather than to the particular charity. This may be important where the particular charity has ceased to exist …"
"Now there is no better rule than that a benignant construction will be placed on charitable bequests".
Although the decision is one of the House of Lords, this was in fact a Scottish appeal. But I do not think that anything turns on that. On this point the Scottish and English law are the same, and the like benignant construction is given by English law also.
"Where the object of the gift is an institution which has never existed but the gift is construed as a gift for the charitable purposes of the non-existent institution and these can be inferred from the will, then, provided the purposes are practicable, usually the gift will not fail and will be applicable for those purposes, usually under a regulatory (non-cy-près) scheme. Rarely in such a case the existence of the institution referred to may be considered to be an essential element of the gift, in which event the gift will wholly fail by reason of its non-existence and will pass to the next-of kin (or to whoever else is entitled in the event of failure). If the purposes cannot be ascertained, but it is clear that they were charitable purposes, the purposes may be defined by way of scheme as described in the preceding chapter. If the gift is construed as a gift to the institution rather than for its purposes, then unless a general charitable intent can be found (which will usually be difficult in such a case), the gift will wholly fail and will pass to the next-of kin (or to whoever else is entitled in the event of failure). If in such a case a general charitable intent can be found then a cy-près scheme should be made."
Clause 3
Disposition
"63. For completeness I should add that CPR rule 44.10(1) provides that
'Where the court makes an order which does not mention costs –
(a) [ … ] the general rule is that no party is entitled [ … ] to costs [ … ] but
(b) this does not affect any entitlement of a party to recover costs out of a fund held by that party as trustee or personal representative [ … ].'
64. This means that, where the trustee is entitled to an indemnity for any costs out of the trust fund, whether under Rule 46.3 and/or para 1 of the Practice Direction to Part 46, or indeed otherwise (eg a contract), there is no need for an order to that effect. An order made which does not mention costs does not prevent the trustee exercising his right to indemnity. If the trustee does so, and the beneficiary wishes to challenge this, he is still able to (formally, this could be, for example, by applying for an account and then seeking to falsify it).
65. The reference in rule 46.3(3) to 'assessed' costs does not mean that trustees cannot exercise their indemnity without a court order to that effect. Instead it just confirms the basis of assessment in any case where the costs of trustees fall to be assessed under a court order. It avoids the risk that trustees who should otherwise obtain a complete indemnity from the trust fund, but who, in respect of the litigation costs they incur are awarded costs only on the standard basis, thereby obtain less than a complete indemnity."