Category Archives: modern law

No longer waiting for Ilott: preliminary thoughts

The Supreme Court heard Ilott v Blue Cross [2017] UKSC 17 before Christmas, and has now published its decision in this, one of the biggest cases on succession law in several years:

https://www.supremecourt.uk/cases/docs/uksc-2015-0203-judgment.pdf

It was a case about a will, and, specifically about an adult daughter’s challenge to her mother’s determined efforts to leave her nothing of her (relatively modest) estate. The mother in question, Mrs Melita Jackson, had instead favoured a group of charities, and had left specific instructions that any attempt by her daughter, Heather Ilott, to upset this arrangement should be resisted. Heather did indeed mount a challenge, based on the Inheritance (Provision for Family and Dependents) Act 1975. This allows a range of relations and connections of a deceased person to claim reasonable financial provision from the estate, under certain circumstances.

The case had gone through several stages before this, with judges interpreting the Act, and their own task under it, in rather different ways. While most seemed content to accept that Heather Ilott should be given some sort of support from her mother’s estate, there were varying views as to what sort of an award she should receive – how much, and in what form, and what should it represent?

The (unanimous) Supreme Court decided to allow the appeal of the charities in this case, which, as far as Heather Ilott was concerned, meant that the provision she would be getting from the estate went back to £50,000, the sum fixed on by DJ Million, rather than the substantially higher figure which the Court of Appeal had decided upon.

In real life, Heather Ilott’s loss may not be as large as it appears from these bald facts: the SC judgment makes it apparent that some sort of arrangement has been made between the charities and Heather Ilott, presumably to soften the blow of this decrease in provision. From the point of view of the charities, this was clearly a difficult case to handle, since they risked looking extremely, well, uncharitable in trying to reduce the award made to a woman who was, clearly, in unfavourable financial circumstances. Nevertheless, it was clearly important to them not to concede ground in the area of challenges to money left to them by will, given that this is one of their major sources of income.

The decision itself, although it is in favour of the charities involved, and has been welcomed by the charity sector more generally, is relatively cautious. It is hedged about by the familiar reluctance to define terms, insistence that cases turn on their own facts, and comes complete with a Lady Hale critique of the current state of the law (and the failure of the Law Commission to deal with its problems). It was not to be expected that one case could deal with the genuine and longstanding tensions between a feeling that a person should be able to do as she wishes with her own property, a power extending even after death, and an instinct that there is an obligation to support and maintain particular close relations, if found ‘deserving’ (or at least ‘not undeserving’). (It is often suggested that ‘testamentary freedom’, unaffected by the latter obligation, had a relatively short life-span, but that is to ignore the centuries of exploitation of a variety of devices – particularly, but not only, those involving uses and trusts – to achieve control beyond death in the pattern of succession to land and personal property.) On top of that ancient tension, there are large issues of principle in relation to the relevance of tax and benefits considerations in these sorts of decision, deserving of more rounded and thorough consideration than would be possible on one individual set of circumstances. No doubt both the implications of Ilott itself and the wider issues will be considered in detail by succession law commentators in the coming months.

It has been a long drawn out case for those involved. For those of us watching it unfold, it has been interesting in many ways. The Supreme Court case before Christmas was the first televised SC case I have ever watched (and yes, I did watch it all the way through!), which was quite educational, if not especially dynamic. I have also found it instructive to look at the press coverage of the case. There is a lot of criticism of the deceased mother, Melita Jackson, who is characterised as spiteful and unreasonable. This draws upon comments by counsel, claimant and judges. It may or may not be fair – Mrs Jackson is not around to give her side of the story, or to object to the way in which she has been portrayed. The lack of an opportunity to answer back is inevitable in wills cases, but it can be rather uncomfortable: I find it rather disturbing seeing such one-sided contentions about deceased people (I found the airing of the alleged delusions of a woman with Alzheimer’s in Lloyd v Jones [2016] EWHC 1308 (Ch) particularly sad: I don’t think any of us would like to think that the general public would one day hear the claim that we had had delusions involving aliens, witches, dead people and being burgled or poisoned by Saddam Hussein, and were incontinent). It would also be interesting to examine the comments in Ilott and in comparable cases to see whether certain types of criticism are more likely to be applied to female as opposed to male testators: that’s going on my list of ‘one of these days’ projects. (At least one very gendered ‘below the line’ comment here sums up the case as entrenching ‘the human right to be a b***h’ – their stars, not mine: http://www.legalcheek.com/2017/03/supreme-court-backs-three-animal-charities-over-struggling-daughter-on-benefits-in-a-row-about-her-dead-mums-will/#comment-1009330 ).

It has been interesting to observe the Telegraph, and, in particular the Daily Mail, as they make very apparent the tensions noted above. Although Heather Ilott (despite having claimed various benefits and tax credits over many years, and thus not being the sort of person they usually favour) is generally portrayed in a fairly sympathetic light, there is also a clear concern with testamentary freedom (particularly when defence of testamentary freedom can be combined with a dig at ‘out of touch’ judges: http://www.dailymail.co.uk/debate/article-3178080/MAX-HASTINGS-judges-tell-leave-money-wills.html ), and, when wider conclusions are drawn from the litigation, the reader tends to be cast in the role of testator, rather than badly-off IHA claiman (e.g. http://www.telegraph.co.uk/news/uknews/law-and-order/11766651/Your-will-can-be-ignored-say-judges.html )

(If anyone wants to see a somewhat lower level of commentary, then the ‘below the line’ comments on the Express article on the case are a good (in the sense of predictable and depressing) place to start: http://www.express.co.uk/news/uk/779633/Supreme-Court-rules-award-woman-left-mother-will-charity-payout).

So – lots to think about: certainly in terms of immediate effects, but also in terms of attitudes revealed by the case and its coverage, and in terms of longer historical traditions of allowing and limiting control of property beyond death. No doubt I will be coming back to this.

GS 15/3/2017

Further coverage

A couple of days on, we get this in the Guardian: https://www.theguardian.com/voluntary-sector-network/2017/mar/17/charities-court-disputes-contested-wills-melita-jackson?utm_source=dlvr.it&utm_medium=twitter – a condemnation of charities for ‘interfering’ in contested wills. It may be right to say that there are problems with public trust of charities, but it seems harsh to describe the charities’ conduct here as ‘interfering’, since the initial active part was taken by the daughter of the deceased, asking for an alteration in the way in which the deceased’s estate should be shared out, and then asking for a larger share than was awarded at first instance. The article plays down the idea that the case has precedent value – clearly it is very important for charities to know where they stand on the vulnerability of wills which leave them money. It also ignores the fact that there does seem to have been some arrangement to limit the actual impact of the decision on the daughter in the case. It looks to me as if the charities were very well aware of the possible PR issue. Whatever one thinks about the weight which should be attached to testtamentary freedom, this does look like an issue which needed a thorough workout in court, in an effort to sort things out for the future. Whether Ilott has done that is, of course, a different matter…

18/3/ 2017 General message that we should be able to do what we like in our wills in Janet Street-Porter’s opinion piece: http://www.independent.co.uk/voices/melina-jackson-will-charities-rspca-cut-daughter-out-supreme-court-sad-reflection-a7636056.html – though might have been an idea to read the judgment or summary a bit more carefully … suggestion here is that the will ‘stands’ and Heather Ilott gets nothing – the SC just put things back to DJ Million’s conclusion that Heather Ilott should get a lower sum than the CA awarded.

Registering objections (a rare foray into the modern world)

The government is asking for responses to its proposals for privatisation of the Land Registry: https://www.gov.uk/government/consultations/land-registry-moving-operations-to-the-private-sector Responses by 26^th May.

This might not be an obviously exciting topic – the body which investigates and records land titles probably isn’t at the forefront of most people’s minds. Even land law students tend to yawn at the mention of land registration. But it is important – nobody who buys or sells a house can avoid involvement with the Land Registry. It is compulsory to make entries on the Register whenever land is sold, or dealt with in a variety of other significant ways.

The Land Registry does several important jobs which need to be done securely and competently. Accountability and transparency are also crucial. It is hard to believe that a move into the private sector would maintain standards in any of these areas, let alone improve them. There was considerable opposition to this move last time it was tried (under the Coalition) and the objections still apply.

The Land Registry is a (rare) publicly-owned body which does not lose money. Selling it off raises suspicions that the government is planning a quick sale for cosmetic purposes: ‘selling the family silver’ at a knock-down price, (see also the recent Royal Mail privatisation).

It also has to be said that it doesn’t look good to be doing this at a time of disquiet about hidden assets and offshore trusts and companies: whatever the talk about safeguards and maintaining access, would there really be any chance of getting the sort of information from a privatised Land Registry which allowed Private Eye to survey the proportion of English and Welsh property owned by offshore companies (http://www.private-eye.co.uk/registry )?

Fraud and fungus: a fresh look at Rochefoucauld v Boustead [1897] 1 Ch. 196

An interesting and careful reappraisal of a case very well known to teachers and students of equity and trusts is provided in G. Allan, ‘Ceylon coffee, the Comtesse and the consignee: a historical reappraisal of Rochefoucauld v Boustead’, Journal of Legal History 36:1 (2015) 43-82. This goes some years into the background of the behaviour and transactions which culminated in this important case, dealing along the way with divorce, Roman-Dutch mortgage law and agricultural catastrophe. The Comtesse of the title emerges as an intriguing figure well worth literary treatment – and a follow-up film which could include scenes in Ceylon, Paris, Baden Baden and London. Winslet? Scott-Thomas? Clearly an Oscar-worthy role. It also provides some less-obviously dramatic but careful consideration of the categorisation of trusts, and thinking about equitable fraud, at the time of the case, which is worth taking into account when looking at it for the purposes of modern legal doctrine and practice.

‘Dickensian litigation’ – CA judgment in Gilks v Hodgson (2015) http://www.bailii.org/ew/cases/EWCA/Civ/2015/5.html

Lawyers do like their Dickens references. The concept of ‘Dickensian litigation’ has reared its head in a recent easements case, Gilks v Hodgson (2015) which can be found at

http://www.bailii.org/ew/cases/EWCA/Civ/2015/5.html

Bean LJ’s allusion, no doubt, is to the preposterously and ruinously extended case of Jarndyce v Jarndyce from Bleak House. Both cases cost significantly more than the subject matter was worth – in the recent case, it has been suggested that costs might be £500,000 – so the characterisation of Gilks v Hodgson seems justified in part. In addition, there is the odd whimsical touch, such as the issue of whether or not some alpacas were being disturbed, which might well have appealed to Dickens. On the other hand, there are clear differences – the parties in Gilks do not sound as if they will be ruined by the case, however foolish it may seem, and it has not lasted anything like as long as Jarndyce.

The idea of ‘Dickensian’ litigation is perhaps more appropriate in long running and complex cases such as Hackney LBC v Sivanandan [2013] EWCA Civ 22, a discrimination case which had lasted at least 12 years, with many twists and turns (see Mummery LJ at 2). It is complexity – again probably alluding to Jarndyce – which is described as Dickensian in the multi party Jackson v Thakrar case ([2007] EWHC 271, per HHJ Peter Coulson QC).

Other Dickens works appear to be the subject of allusion in relation to the chaining of prisoners in hospital – Elias J, whose remarks are reported in Spinks v Secretary of State for the Home Office [2005] EWCA Civ. 295 (referring to A Tale of Two Cities crossed with A Christmas Carol?). Poverty and poor living conditions (which might be drawn from Oliver Twist, Our Mutual Friend, or elsewhere) are the ‘Dickensian’ factors in Murphy v Burrows [2004] EWHC 1900 (Ch) (per Richard Sheldon QC). Malicious and brutal schoolmasters (presumably Squeers in Nicholas Nickleby) are drawn to mind by the reference in R on the application of Williamson v Secretary of State for Education [2001] EWHC 960. Perhaps the most specific (relatively) recent reference is that by Peter Hayward in Burrals of Wisbech Ltd’s Applications [2004] RPC 14. Discussing the peculiarity of a stature which distinguishes between the right to inspect a document, and the right to copy it, he brings in the office Deputy Chaff-Wax(seen in A Poor Man’s Tale of a Patent). See also the specific reference by chapter to the ‘Dickensian’ administration of patents – Oliver LJ in Therm-a-Stor Ltd v Weatherseal Windows Ltd [1981] FSR 579, citing Little Dorrit c. 10.

To return to Gilks v Hodgson, while judges instinct might be for the ‘Dickensian’ reference, media interest has been so keen to note that the location of the dispute is close to the homes of various footballers and celebrities (in Cheshire) that perhaps it would be equally justified to invoke the world of Footballers’ Wives or Heat magazine. The judge at first instance called the parties’ relationship ‘toxic’, though, disappointingly, without any overt Britney Spears reference.

For media coverage, see, e.g.

http://www.telegraph.co.uk/news/uknews/law-and-order/11236002/Warring-couples-spend-half-a-million-pounds-in-legal-fight-over-muddy-ditch.html

http://www.dailymail.co.uk/news/article-2838039/Wealthy-neighbours-spend-500-000-right-way-legal-wrangle-muddy-ditch-just-feet-wide-separates-land.html

GS 24/1/2015.

The Law Front Part II

By 1916 more cases dealt with facts which had arisen during war-time, including enemy ships taken as prize, and maritime law problems arising from the declaration of war while a cargo was in transit to Germany, how to treat a company with alien enemy shareholders (Daimler), the legal consequences of a merchant ship being sunk by enemy action, whether a sailor who had been imprisoned in Germany because his (merchant) ship was in a German port at the outbreak of war was entitled to wages during his imprisonment (Horlick v Beal [1916] 1 AC 486], and issues of nationality and internment (Ex parte Weber [1916] 1 AC 421). ‘Normal’ issues continued to dominate, however, including disputes about tax, local government, highway maintenance, labour law and land law. More diverting subject matter included the trade mark of a cat on gin, and whether it was infringed by a ‘puss in boots’ picture on another brand of gin (Boord v Bagotts, Hutton and Co. [1916] 1 AC 382. And there was time in Jones v Jones [1916] 2 AC 481 to decide that imputations of adultery to a schoolmaster, unless connected to his calling, did not amount to slander, unless special damage was shown. This case is notable for a thorough discussion of the history of defamation at common law, and, perhaps, for the judges’ inability to understand just how seriously an imputation of adultery would be taken in the decidedly un-metropolitan North Welsh location of the dispute.

To be continued …

The Law Front (Part I)

It is fairly difficult to miss the many commemorations for the centenary of the beginning of the First World War. We hear, of course, about the warfare itself, though there have also been insights into conditions in civilian life during the war period. What, though, of the law? What were the issues occupying Britain’s most prominent lawyers as the country faced the Great War?

The 1914 A.C. reports show that the House of Lords was dealing with many actions begun before the outbreak of war. By the 1915 volume, there were more cases which had been started (or had been referred to the HL) in the war period itself, but still many involved facts which had occurred prior to the outbreak of war. Matters considered included: Scots land law, charterparties and strikes, bankruptcy, trustees and ultra vires acts, wills and trusts, construction of contracts and measure of damages, rescission of contracts, conveyancing, the Poor Law and labour law.

Several cases involved miners – including an unsuccessful attempt by a miner to claim for false imprisonment by his employers in the mine (Herd v Weardale Steel Coal and Coke Co. [1915] AC 67) – reflecting the uneasy relationship between employees and mine owners, and the dangers of mining. There is also the litigation involving the nuisance of coal dust caused by the Pwllbach Colliery Co. ([1915] AC 634). Sailors and others involved with ships also feature quite frequently, and are not treated with great generosity in the case of industrial injury.

All this suggests an atmosphere of legal business as usual. While the matters discussed were generally important, they do seem somewhat disconnected from the world of fighting and coping with a major war. Going even further, an impression of extreme snobbish triviality is given by the (unsuccessful) continued pursuit of a claim to an extinct barony – with full legal historical argument about the nature of medieval parliaments – by one Captain Francis William Forester: St John Peerage Case [1915] AC 282.