Booth v Booth and others

Title to land – Husband transferring legal ownership of farm to wife – Husband taking farm on wife’s death after swearing that he was solely entitled to her estate on her intestacy – Husband leaving farm to appellant son in will – Respondent children bringing probate action disputing will and claiming entitlement to farm under husband’s intestacy – Second action claiming entitlement under wife’s intestacy – Whether second action abuse of process – Whether appellant barred from raising abuse of process point – Appeal dismissedThe appellant was the son and the second and third respondents were daughters of the same married couple; the first respondent was the wife’s son by a different father. The husband owned a farm, which, from 1980, was held as an asset of a farming partnership between him and the appellant. When the husband retired from the partnership in 1988, he agreed that the appellant should have the farming business together with the land and farm buildings, while he would retain a modern farmhouse and two cottages. However, no formal transfer took place. In 1992, the husband transferred the legal ownership of the farm to his wife in order to put it out of reach of a builder who was seeking to enforce a costs order obtained in earlier proceedings.The wife died intestate in 1993, whereupon the husband obtained letters of administration, swearing that he was solely entitled to her estate. The estate was vested in him and he thereafter regarded himself as the sole beneficial owner. He died in 2005, leaving the modern farmhouse and cottages to the appellant under a 2004 will.In 2005, the respondents brought a probate action (the first action) in which they unsuccessfully challenged the validity of the 2004 will and claimed that the husband had died intestate. They also claimed that they were entitled to the farm under the husband’s intestacy on the basis that it formed part of his estate. By a second action against the husband’s administrator, the respondents claimed for an account of what was due to them under the wife’s intestacy, contending that the husband had dishonestly undervalued the estate and was guilty of devastavit in retaining the entire estate on the basis that he alone was beneficially entitled to it. In those proceedings, contrary to their position in the first action, they asserted that the farm formed part of the wife’s estate by virtue of the 1992 transfer. The appellant applied to be joined as a defendant; in that application and in his defence, he disputed that the farm belonged to the wife and further asserted that the claim was an abuse of process.On a trial of preliminary issues, the deputy judge found that the wife had owned the farm beneficially, subject only to the appellant’s beneficial ownership of those parts given to him on the dissolution of the farming partnership. He found that the respondents’ claim was neither barred by laches nor as an abuse of process, holding that the latter point should have been advanced in an application to strike out the action and that it was now too late to advance it since the appellant had acquiesced in the proceedings by defending the claim on its merits. The appellant appealed.Held: The appeal was dismissed. (1) The judge had been entitled to find that the husband had intended to gift the farmhouse and cottages to his wife. In reaching that conclusion, he had correctly focused on what the husband did rather than on assertions by family members as to what they believed his intentions to have been. He had also been entitled to hold that the respondents were not barred by laches from advancing their claim requiring the appellant to make good the devastatit occasioned by the husband’s maladministration of the wife’s estate.(2) The judge had erred in rejecting the abuse of process objection on the ground of the appellant’s alleged acquiescence in bringing the second action. Although a strike-out application might have been the better course, the appellant had made his abuse of process objection clear from the outset. Although his defence also pleaded substantive points, that could not amount to acquiescence in bringing the second action since his prompt, overt and continued challenge to it as an abuse of process was the reverse of acquiescence: Johnson v Gore Wood & Co (No 1) [2002] 2 AC 1 distinguished. Nor did any acquiescence arise from the appellant’s participation in the trial of substantive preliminary issues together with the abuse of process point. The judge’s order directing the trial of those issues was flawed. An assertion that a claim was an abuse was not a defence to the claim but an objection to it being raised. Therefore, it was problematic to direct a trial of substantive issues together with the logically prior question of whether the respondents were entitled to pursue the second action. The result of the order was that the parties had to make their case on all the preliminary issues and the court was obliged to decide all of them. It followed that the judge had dismissed the abuse of process case on a false point.Determining the matter afresh, however, it was not appropriate to strike out the second action as an abuse of process. It was not sufficient for the appellant to show that the claims raised in the second action could have been raised in the first action. A broad merits-based approach was required, with consideration of whether the bringing of the second action would constitute unjust harassment of the appellant: Johnson and Walbrook Trustees (Jersey) Ltd v Fattal [2009] EWCA Civ 297 applied. The High Court had not found that the husband had executed a beneficial transfer of the farmhouse and cottages to the wife in 1992, made what was probably a dishonest undervaluation of her estate in obtaining a grant of letters of administration of her estate and then, in breach of trust, misappropriated her estate to his sole use and thus deprived his children of their lawful inheritance. The claim had been tried to the extent that the private rights of the family members had been substantially determined and it was important that those rights should be respected and enforced. The court should not strike out the action and leave the appellant to appropriate and retain for his own sole use property in respect of which he had no such right.Sarah Harrison (instructed by Ramsdens Solicitors LLP, of Huddersfield) appeared for the appellant; Raphael Cohen (instructed by Gordons LLP, of Leeds) appeared for the respondents.Sally Dobson, barrister