Dellar v Zivy & Ors [2007] EWHC 2266 (Ch)

[2007] EWHC 2266 (Ch)Case No HC07C00175
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 9 October 2007
Before
THE HONOURABLE MR JUSTICE KITCHIN
Between
Howard DellarClaimantMyriam ZivyDefendantsGerard Pierre Bertrand ZivyDefendantOlivia Genevieve Odette LemarchandDefendantVeronique Roberte ZivyDefendant
Thomas Seymour (instructed by Lee Bolton and Lee) for ClaimantHenry Legge (instructed by Collyer Bristow) for DefendantsHearing Hearing date: 5 September 2007
JudgmentMR. JUSTICE KITCHIN :
[1]This is a claim for a declaration as to the true construction of the will of M. Pierre Paul Robert Zivy (“the Deceased”) who died on 31 December 2001. Probate of the will was granted out of the High Court of Justice on 22 July 2002. The Deceased was unmarried and had no issue. He was survived by his sister, the first defendant, his brother, Bertrand, and his adult nephews and nieces, the second to fourth defendants.[2]The claimant, a solicitor, and the first defendant are co-executors of the will, the claimant as a replacement for his partner, Mr Andrew Davies, pursuant to an order of Master Bragge of 26 January 2006 and the first defendant under the terms of the will.[3]I now have before me two contested applications. The first is an application by the claimant for summary judgment on his claim for a declaration as to the devolution of the Deceased’s estate. The second is an application by the second to fourth defendants: i) to strike out or stay the claim on the basis that England is not the convenient forum for the claim to be heard; ii) to set aside the permission given to the claimant to serve the proceedings out of the jurisdiction on the basis of material non disclosure in the affidavit relied upon in support of the application for that permission.

Background

[4]The deceased came to live in England in the late 1970s and was for many years involved with the running of the UK subsidiary of the family business, Krieg and Zivy Industries (UK). He owned shares in certain French property holding companies called Societies Civiles Immobilieres (“SCIs”). Specifically he held shares in SCI de la Lisaine and SCI du Castillon. He also owned shares in another French corporation called France Reportage.[5]In 1981 he lived in a flat at 2 Hanover House, St John’s Wood, London. That year he instructed Mr Davies, a partner in Lee Bolton & Lee, solicitors, to draw up his will which was executed on 15 December 1981. In an attendance note produced at the time Mr Davies recorded of the Deceased that “He does now regard his home to be in England & proposes to make his home here for the rest of his natural life.”[6]So far as material, the will provided as follows: “THIS IS THE LAST WILL AND TESTAMENT of me PIERRE-PAUL ROBERT ZIVY of 2 Hanover House St. Johns Wood High Street NW8 in Greater London and I HEREBY REVOKE all former Wills and Codicils made by me and DECLARE this to be my last will[1]I DECLARE that my domicile is English[2]I APPOINT ANDREW OWEN EVAN DAVIES of 1 the Sanctuary Westminster SW1 in Greater London and my sister MYRIAM ZIVY of 8 Rue Piccini Paris 75116 France to be the Executors and Trustees of this my Will[3]I DECLARE that in the interpretation of this my Will the expression “my Trustees” shall (where the context permits) mean and include the Trustee or Trustees for the time being hereof whether original or substituted and if there shall be no such Trustee or Trustees shall (where the context permits) include the Trustee or Trustees empowered by statute to exercise or perform any power or trust hereby or by statute conferred upon the Trustee or Trustees hereof and willing or bound to exercise or perform the same[4]I GIVE my godson THIERRY SRIBNY all my shares and stock in the French Corporation France Reportage charged with and subject to a rateable proportion of the estate duty capital transfer tax or French Inheritance Tax payable on my death[5]I DEVISE AND BEQUEATH all my real and the residue of my personal estate whatsoever and wheresoever unto my Trustee UPON TRUST to sell call in and convert the same into money with power to postpone such sale calling in and conversion thereof in the absolute and uncontrolled discretion of my Trustees without being liable for loss[6]MY Trustees shall out of the monies produced by such sale calling in and conversion and out of my ready money pay my debts and funeral expenses and (subject to the provisions of subclause (b)(i) of this clause 6) my testamentary expenses duties and taxes and shall invest the residue of such monies in their name …… …… and stand possessed of such investments and of all parts of my estate for the time being unsold (hereinafter called “my residuary estate”) UPON TRUST:- (a) AS to both the capital and income for my said sister Myriam Zivy absolutely provided she shall be proved to have survived me for a period of fifty-six (56) days (b) SUBJECT to the provision of sub-clause (a) of this clause 6 my Trustees shall hold my residuary estate (i) As to all my shares and stock in the two family property companies Societe Civile Immobiliere de la Lisaine and Societe Civile Immobiliere du Castillon for the children of my brother BERTRAND ZIVY namely GERARD PIERRE BERTRAND ZIVY OLIVIA GENEVIEVE ODETTE ZIVY and VERONIQUE ROVERTE ZIVY in equal shares as joint tenants absolutely…… …… PROVIDED FURTHER that the said shares and stock shall be charged with and subject to a rateable proportion of the estate duty capital transfer tax or French Inheritance tax payable on my death(ii) As to both the capital and interest of the balance of my residuary estate for my said godson Thierry Sribny absolutely[7]MY Trustees shall have the following powers additional to those Hereinbefore specified …… (b) TO exercise the power of appropriation given them by section 41 of the Administration of Estate Act 1925 without obtaining any of the consents required by that section and even though they may be beneficially interested ……[8]I DIRECT that in all matters concerning my estate and the administration and winding up of the same my Executors shall consult and employ my Solicitors Lee Bolton & Lee in amalgamation with Evan Davies & Company of 1 The Sanctuary Westminster SW1 in Greater London ……”[7]By the time of his death the Deceased had disposed of his shares in SCI de la Lisaine but he retained his shares in SCI du Castillon. These shares remain unsold, but there has been a sale, since the death of the Deceased, of assets of the company, the Deceased’s share of which represents, after the payment of French tax and legal fees, about £3 million. This sum is presently lodged in Lee Bolton & Lee’s client account for the estate of the Deceased. The debts and liabilities of the Deceased have been discharged and French estate duty payable has been settled on the basis that the first defendant was the sole beneficiary. The proceeds of sale comprise the most valuable asset in the estate and it is to these proceeds that this claim relates.[8]Following the Deceased’s death, the second to fourth defendants lodged a caveat on 1 July 2002 and instructed the firm of Farrer & Co, solicitors, on the basis that the Deceased had told them a number of times that he had bequeathed the shares in the SCIs to them. By letter of 10 July 2002, Farrer & Co wrote to Lee Bolton & Lee noting that under the terms of the will the shares did not pass to the second to fourth defendants but rather to the first defendant, and expressing concern that the will did not reflect the provisions that the Deceased told the second to fourth defendants he had made for them before he died. They therefore requested information and documentation, including copies of the Deceased’s written instructions, whether the Deceased had made contact with Lee Bolton & Lee concerning any changes to the will and whether there was any evidence that the Deceased had made a further will subsequent to 15 December 1981.[9]On 15 July 2002, the caveat was removed and the will was admitted to probate. Thereafter further correspondence passed between Farrer & Co and Lee Bolton & Lee and information and documentation was provided as requested. That documentation appears to show that the Deceased did telephone Mr Davies of Lee Bolton & Lee stating a wish to alter his will to cut out the first defendant, following some unpleasantness after the death of his mother. However, he never took action to follow it up, despite several letters reminding him of his stated wish and inviting him to do so. In the event, Farrer & Co took no further action and nothing further was heard from them.[10]Despite having instructed English solicitors, the second to fourth defendants arranged a French translation of the will, instructed French lawyers and, in 2003, commenced proceedings in France claiming that the shares were the subject matter of a legacy to them. On 23 May 2003, the first defendant received a writ to appear before the French court. Mr Davies was also joined to the proceedings and, after his death, the claimant, Mr Dellar, was joined in his place.[11]On 6 November 2006, the Tribunal de Grande Instance de Paris held that it had jurisdiction to hear the matter on the basis, inter alia, that under the provisions of article 14 of the Civil Code the French judge has jurisdictional competence to hear any matter in which the plaintiff is French and that the action concerned the delivery of a legacy relating to personal property, namely shares in an SCI. The defendants to the French proceedings appealed that decision.[12]In the meantime Mr Davies and the first defendant had, in November 2003, taken the advice of an English barrister, Mr Thomas Seymour. He advised unequivocally that the net residuary estate, including the shares, passed to the first defendant. Following the decision of the French court they again sought the advice of Mr Seymour and, by written advice of 19 January 2007, he confirmed the advice he had originally given in 2003. Shortly thereafter the claimant commenced this claim under CPR Part 8 seeking a declaration of the English court. On 7 February, permission was given to serve the proceedings on the second to fourth defendants out of the jurisdiction and they were duly served in early March. The time for acknowledgement of service expired in early April.[13]On 9 May, the claimant issued an application for leave to apply for summary judgment under CPR Part 24 and, if granted, for summary judgment.[14]On 10 May, the Paris Court of Appeal decided to defer ruling on the appeal until the pronouncement of the decision of the English court concerning the interpretation of the will on the basis that a decision of this court was likely to have an impact on the French proceedings.[15]On 29 June, the second to fourth defendants filed acknowledgements of service out of time and indicated they intended to dispute the jurisdiction of this court. Then, on 17 July, the second to fourth defendants issued an application seeking orders(a) that the claim be struck out on the basis this court does not have jurisdiction or, alternatively, that this is not the convenient forum for the claim to be heard;(b) that the order conferring permission to serve the proceedings on the second to fourth defendants out of the jurisdiction be set aside for material non disclosure;(c) extending time for service of the acknowledgements of service.[16]The claimant indicated at the hearing before me that he did not contest an order being made under (c) extending time for acknowledgements of service and otherwise as necessary to make this application and accordingly I grant such extensions. However he contested the orders sought under (a) and (b).[17]The parties addressed me on the issues arising in the following[18]I should note at the outset that although the second to fourth defendants addressed me on this issue they made clear that they did not intend thereby to submit to the jurisdiction and requested the court to give them the opportunity to consider whether they wished to submit to the jurisdiction in the light of this court’s conclusions on their applications.

The rival submissions

[19]Turning to the merits, the claimant submitted as follows. The will must be interpreted in accordance with the law intended by the Deceased. In the case of movables (which the SCI shares undoubtedly were) this is presumed to be the law of the testator’s domicile at the date of execution of the will, but this presumption can be rebutted by any sufficient indication that the testator intended his will to be construed according to the law of another country. In this case, there is every indication that the Deceased intended the will to be interpreted according to English law irrespective of his domicile. But in any event his domicile in 1981 was plainly English. As to the construction of the will according to English law, it is indisputably clear from the will that the net residuary estate, including the shares in SCI du Castillon, passed to the first defendant, once she survived the 56 day period, which she did.[20]The second to fourth defendants submitted that as a matter of English law the shares, being movables, devolve according to the law of the testator’s domicile at the date of his death. Here there is a strong prima facie case that the Deceased died with a French domicile, most likely because he never took sufficient steps to break his ties with France so as to lose his French domicile of origin. It is therefore at the very least a serious possibility that the movable property of the Deceased devolves according to French law. Further, the advice received by the second to fourth defendants and disclosed to this court is that the effect of the will under French law would be that the Deceased’s shares in SCI du Castillon passed to the second to fourth defendants.

The legal principles

[21]It is apparent from these rival submissions that there was a sharp dispute between the parties as to the correct approach to be adopted to the issue before me as a matter of law. In considering the respective merits of these submissions it is important to distinguish between the interpretation and the material or essential validity of a will. In my judgment the relevant principles applicable to each are these.[22]First, it is clear that a will is to be interpreted in accordance with the law intended by the testator. In the absence of indications to the contrary, this is presumed to be the law of his domicile at the time when the will is made. However, this is a rebuttable presumption. It may be apparent from the nature of the will or other matters that the testator wrote his will with reference to and with the intention that it should be interpreted according to the law of some other country. These general principles are well settled and explained in, for example, Dicey, Morris and Collins, 14th edition, Sweet & Maxwell, 2006, at paragraphs 27R-055 to 27-063; Williams on Wills, 8th edition, Butterworths, 2002 at paragraph 24.6 and Halsbury’s Laws, 4th edition-2003 re-issue, Vol. 8(3) on Conflict of Laws at paragraph 453. An illustration of their application is the case of Re Allen’s Estate [1945] 2 AER 264.[23]Second, once a will has been interpreted it may, however, be necessary to consider its material or essential validity. In the case of movables, this question is governed by the law of the testator’s domicile at the date of his death. Hence, for example, the laws of France invalidate bequests of more than a certain proportion of the testator’s property in derogation of the rights of certain next-of-kin. This principle is explained in Dicey, Morris and Collins (supra) in these terms at paragraph 27-043:
“A will made by a person under no testamentary incapacity and duly executed or formally valid may nevertheless be invalid, or wholly or partly inoperative, because it contains provisions to which the law will not give effect…… Such invalidity, arising from the nature of the bequest, is termed material or essential invalidity, and whether a will is or is not void wholly or in part on account of such invalidity depends upon the law of the country where the testator is domiciled at the date of his death.”
[24]And at 27-045:
“It is well settled that the material or essential validity of a will of movables or of any particular gift of movables contained therein is governed by the law of the testator’s domicile at the date of his death. That law determines such questions as whether the testator is bound to leave a certain proportion of his estate to his children or widow, whether legacies to charities are valid, to what extent gifts are invalid as infringing the rule against perpetuities or accumulations, whether substitutionary gifts are valid, whether gifts to attesting witnesses are valid, and so on.”
[25]The second to fourth defendants submitted that all issues relating to a disposition of movables must be determined according to the law of the country of domicile of the deceased at the date of his death and in this regard relied upon the cases of Philipson-Stow [1961] AC 727 and Re Levick [1963] 1 WLR 31. Both cases concerned the true construction of section 28(2) of the Finance Act 1949. This excluded from liability for estate duty property “passing on the death which is situate out of Great Britain if it is shown that the proper law regulating the devolution of the property situate, or the disposition under or by reason of which it passes, is the law neither of England nor of Scotland” provided one of certain other conditions was satisfied.[26]In Philipson-Stow the House of Lords concluded that the proper law “regulating” a disposition of immovable property for the purposes of section 28(2) was the lex situs. However, both Lord Reid (at 743) and Lord Denning (at 760) observed that the proper law “regulating” the disposition of movables was the law of the domicile of the testator at the time of his death.[27]Re Levick was specifically concerned with a disposition of movable property and Plowman J considered that the observations of Lord Reid and Lord Denning were made in a context which comprehended the issue he had to decide. Accordingly, he concluded that the proper law “regulating” the disposition of movable property for the purposes of section 28(2) was the law of the testator’s domicile at the time of his death.[28]In my judgment neither of these cases supports the proposition that a will containing a disposition of movable property should be interpreted according to the law of the testator’s domicile at the time of his death. They were concerned with the meaning of the expression “the proper law regulating the devolution of the property” in the context of a specific statutory provision. They were not concerned with the approach to be adopted to the interpretation of a will. Indeed, in Philipson-Stow, Lord Denning made this distinction clear and affirmed that the question of interpretation depends upon the intention of the testator (at 760-761):
“We are dealing with a will: and, whilst I would agree that the construction of a will depends on the intention of the testator, I would say that in no other respect does his intention determine the law applicable to it. Let me take first the case where there is a disposition of movable property by will. There is no doubt that the proper law regulating the disposition of movables is the law of the domicile of the testator at the time of his death. In the leading case on this subject Lord Carnworth used the word “regulate” in this very connection. When a person dies domiciled abroad, he said, “in every case the succession to personal property will be regulated not according to the law of this country but to that of his domicile”: see Enohin v Wylie. There is perhaps an exception in regard to the construction of his will: for if a question arises as to the interpretation of the will and it should appear that the testator has changed his domicile between making his will and his death, his will may fall to be construed according to the law of his domicile at the time he made it: though in all other respects it would be governed by the law of his domicile at the date of his death.”
[29]Similarly, it is clear from the decision of Plowman J in Re Levick (at 318) that he considered the term “regulate” was concerned with the material or essential validity of a will, rather than with its interpretation:
“In the case of immovables it is lex situs (as the House of Lords held) and in the case of movables it is, in my judgment, the lex domicilii, from which the validity of the disposition stems. As Mr Foster conceded, if the law of South Africa had forbidden the disposition with which I am concerned, it could not have taken effect.”
[30]Accordingly I have reached the clear conclusion that the will in this case must be interpreted according to the law intended by the Deceased.

The intention of the Deceased

[31]I turn then to consider which law the Deceased intended should apply to the interpretation of the will. As I have indicated, there is a presumption that he intended the will to be interpreted according to the law of his domicile in 1981, the time he made the will. But that presumption is rebuttable where the testator’s intention is apparent from the nature of the will or from other circumstances. Here the claimant submitted the nature of the will and the circumstances in which it was made make it clear that the Deceased intended the interpretation of the will to be decided according to English law, irrespective of what his domicile might have been.[32]In my judgment the following are material circumstances: i) The will was made in England by English solicitors and it is written in English. ii) The will records the Deceased as being resident in England at 2 Hanover House, St John’s Wood. iii) Clause 1 of the will expressly records the domicile of the Deceased as being English. This reflects the instruction given to Mr Davies recorded in paragraph 5 of this judgment. This declaration, even if not accurate as a matter of law, is to my mind very significant. It is a very strong indicator that the Deceased intended his will to be interpreted in accordance with English law. iv) Clause 2 appoints as one of the executors, Mr Davies, an English solicitor. v) Clause 3 appoints trustees and clause 5 creates a trust for sale of the residuary estate after the specific disposition to the godson of the Deceased contained in clause 4. It was accepted by all parties before me that trusts of this kind are not known to French law. This is another powerful indication that the Deceased intended the will to be interpreted according to English law. vi) Clause 7 gives the trustees additional powers including specifically a power to exercise the power of appropriation given to them by section 41 of the Administration of Estates Act 1925 without obtaining any of the consents required by that section. This is yet another strong indication that the Deceased intended the will to be interpreted according to English law. vii) Clause 8 directs that English solicitors, as opposed to French lawyers, are to be consulted in all matters concerning the administration and winding up of the estate.[33]I recognise that the Deceased had a French domicile of origin, that the disposition in issue is of shares in a French SCI and that the surviving relatives of the Deceased all lived in France. I am also conscious that the Deceased retained the connections with France that I detail below in considering the question of his domicile. However, I have reached the conclusion that the facts and matters to which I have referred in paragraph 32 above leave no room for any doubt as to the intention of the Deceased. In my judgment they make it absolutely clear that, whatever his domicile may have been, he intended his will to be interpreted according to the laws of England. I do not believe the second to fourth defendants have any real prospect of successfully defending the claim in this respect.

What was the domicile of the Deceased in 1981 when the will was made?

[34]For the reasons I have given, I do not believe it is necessary to determine this question. Nevertheless, the claimant asserts that I can be satisfied on the materials before me that the Deceased was domiciled in England in 1981. Specifically he relies upon the express declaration of domicile in clause 1 of the will, the instruction given to Mr Davies recorded in paragraph 5 of this judgment and the fact that the Deceased came to England in the late 1970s, worked here and first acquired his flat in St John’s Wood, in which he lived in 1981, and later The Coach House in East Hove which he retained until he died.[35]Against this, I must take into account the evidence of the second defendant. In a witness statement of 10 July 2007 he expresses the belief that the Deceased died with a French domicile. There can be no doubt that the Deceased had a French domicile of origin and it is the second defendant’s belief that he never lost it, and so necessarily had a French domicile in 1981. His reasons for that belief can be summarised as follows. Throughout his time in England the Deceased retained French citizenship and voted in French elections. Further, his financial position was dependent on France. He ran the UK subsidiary of the family trading company, which was French, held a French bank account, paid French taxes on income and capital gains arising in France and in due course received a French pension. Moreover, the Deceased retained the use of property in France. That property comprised a cottage in Burgundy and, from 1997, a flat in Paris. Finally, throughout his life, all of the family of the Deceased lived in France.[36]Under English law a person may acquire a domicile of choice by the combination of residence and intention of permanent or indefinite residence. In the present case I do not believe there can be any serious dispute that the deceased lived in England in 1981. But I think it is more questionable whether he intended to reside in England permanently or indefinitely. Certainly, the claimant has strong arguments that he did, based, in particular, upon the instruction he gave to Mr Davies and the declaration he made in the will. But I am concerned that the matters referred to by the second defendant do, just, raise an issue as to whether the Deceased ever truly intended to leave France permanently and, correspondingly, whether his intention to reside in England could properly be characterised as permanent or, at least, indefinite. Determination of this issue must inevitably involve a consideration of all the facts, including the circumstances in which the Deceased used his properties in France and the extent to which he maintained his other connections with that country.[37]For all these reasons, and strong though the case of the claimant is, I would not have considered this a case for summary judgment if it depended upon the claimant establishing that the Deceased was of English domicile at the date of the will.

The proper interpretation of the will as a matter of English law

[38]Since I am satisfied that the Deceased intended the will to be interpreted according to English law, this is the next question I must determine. The will is drawn in standard terms and I believe that as a matter of English law its meaning is clear.[39]The only specific bequest is that contained in clause 4, namely the gift to the godson of the Deceased of his shares and stock in the French corporation France Reportage. The rest of the estate, described as the “residue”, was devised to the trustees upon trust to sell, call in and convert the same into money. This caught everything else, including the shares in SCI du Castillon. Under clause 6, the trustees were directed to use the moneys so derived to pay the funeral and testamentary expenses, duties and taxes of the Deceased and then invest the proceeds and stand possessed of those investments and all other parts of the estate which might have remained unsold (described as “my residuary estate”) on trust. Accordingly I have no doubt that the shares in SCI du Castillon formed part of the residuary estate.[40]Clause 6 sets out for whom the residuary estate is held. Under 6(a) the trustees hold the whole residuary estate (that is to say as to both capital and income) for the first defendant provided she survived the Deceased for 56 days, which she duly did.[41]Clause 6(b) is expressed to be subject to clause 6(a). Under this clause, and in the event that the disposition under clause 6(a) did not take effect, the Deceased gave his shares in the two SCIs to the second to fourth defendants and the balance of the residuary estate to his godson. However, as I have indicated, the first defendant did satisfy the condition in clause 6(a) by surviving the Deceased by 56 days. Accordingly, the disposition under clause 6(a) did take effect. Inevitably therefore, the disposition under clause 6(b) did not take effect.[42]For all these reasons, and applying the English law of interpretation, the first defendant is entitled to the proceeds of sale of the shares in SCI du Castillon. Indeed, I did not hear any substantive argument to the contrary from the second to fourth defendants.

Is there any challenge to the material or essential validity of the will?

[43]As I have explained, the domicile of the Deceased at the date of his death would only be relevant in the event of an issue arising as to the material or essential validity of the will. However, no such issue arises as a matter of English law. Nor does one arise as a matter of French law. The advice received by the second to fourth defendants concerns the interpretation of the will under French law, not its material or essential validity. I accept that the advice received by the second to fourth defendants raises an issue as to whether the effect of the will, interpreted under French law, would be that the Deceased’s shares in SCI du Castillon passed to the second to fourth defendants. However that is not relevant. The will must be interpreted according to English law. Conclusion[44]For the reasons I have given: i) The will must be interpreted according to English law. ii) Under English law the first defendant is entitled to the shares in SCI du Castillon. iii) No question arises as to the material or essential validity of the will under French law or English law and the issue of the Deceased’s domicile at the date of his death is therefore irrelevant. iv) The claimant is entitled to judgment.

Jurisdiction

[45]The second to fourth defendants invite me to stay or strike out the English proceedings on the basis that there are currently two sets of proceedings on foot relating to the same matter in two different EC countries and that the French court was first seised and has accepted jurisdiction. The defendants accept that Council Regulation (EC) 44/2001 does not apply to cases involving succession which means that the English court has a discretion, rather than an obligation, to stay the proceedings. Accordingly, they say that I should be guided by the principles in The Spiliada [1987] AC 460 and stay the proceedings since: i) The French courts were first seised and substantial costs have already been incurred in the French proceedings. ii) All the parties apart from the claimant are resident in France and are French nationals. iii) The case relates to shares in a French company. iv) The evidence as to the understanding between the Deceased and his family (which appears to be important to the issue of French law) is likely to be in French. v) If the case is tried in England, the English court will have to hear evidence of French law and this evidence is likely to relate to exactly the issue which has been ventilated before the French court. vi) Neither the claimant’s position nor the first defendant’s position is prejudiced by the proceedings taking place in France.[46]In the light of my conclusions on the application for summary judgment, a number of these points immediately fall away. The will is an English document, drawn by an English solicitor and expressed in technical terms of the law of England. The will must be interpreted according to English law and this court does not have to hear evidence of French law. The substantive issues are straightforward and can be determined here on a summary basis without any further evidence at all. Indeed, for the reasons I have given I believe the claimant is entitled to judgment. I accept that the defendants are resident in France and are French nationals and that the case relates to shares in a French company but overall, for the reasons I have given, I am firmly of the view that England is the forum with which the dispute has the most real and substantial connection.[47]I also recognise that the French courts were first seised and that this is a highly significant matter. However, I believe that to stay or strike out these proceedings would deprive the claimant and, indeed the first defendant, of a significant advantage in having this dispute determined speedily and without the need to adduce evidence of English law in the French courts. I also think it relevant that the Paris Court of Appeal has specifically stayed the proceedings in France in order to have the benefit of a decision of this court.[48]These matters, taken as a whole, have persuaded me that England is clearly the most appropriate forum for this dispute to be heard. Accordingly, the application to strike out or stay the claim on the basis that England is not the convenient forum for the claim to be heard must be dismissed.

Application to set aside the permission to serve out of the jurisdiction

[49]The application for permission to serve out of the jurisdiction was made without notice to the second to fourth defendants under CPR 6.20(12) on the basis that the claim was made for a remedy obtainable in proceedings for the administration of the estate of a person (the Deceased) who dieddomiciled within the jurisdiction. The application was supported by the second witness statement of the claimant dated 1 February 2007 which itself referred back to and relied upon his first witness statement dated 25 January 2007. On 7 February 2007, Master Bowles made an order granting the permission sought.[50]The second to fourth defendants now apply to have the order granting permission set aside on the basis of material non disclosure. They accept, however, that if I set aside the order the claimant is in a position to make a further application for permission and that to avoid unnecessary expense I should treat such an application as being before me, that all the materials before the court do justify the granting of permission (subject to their arguments that this is not the appropriate forum) and that re-service of all documents should be dispensed with. In short, they accept that their application to set aside should not alter or affect my approach to the other aspects of the applications before me. It would have had a bearing on the further application they made for permission to serve their acknowledgements of service out of time but, as I have indicated, that application is no longer opposed.[51]It is well established that the evidence in support of an application for permission must be full and frank and it must disclose all facts known to the applicant which might reasonably be taken into account by the court in deciding whether to grant the application. If any material fact is omitted then this may justify the court in discharging the order. Further, the relevant information must be referred to in the witness statements or affidavits relied upon. The court is not expected to make an examination of the exhibits to identify facts to which it has not been directed. However it must also be borne in mind that the claimant only has to show that he had a good arguable case that the claim falls within CPR 6.20(12) - which is a less stringent test than the balance of probabilities - and that the claim has a reasonable prospect of success on the merits.[52]The second to fourth defendants submitted that the evidence relied upon by the claimant fell below the standard required and failed to disclose two material matters:(a) the fact that there was a clear dispute in the French proceedings as to the habitual residence (in French domicil) of the Deceased and(b) the fact that the French court had accepted jurisdiction.[53]As to matter (a), the claimant said in paragraph 2(3) of his second witness statement that the Deceased was domiciled and resident in England at the time of his death. He referred back to paragraph 6 of his first witness statement in which he set out the facts upon which that contention was based. However, he made no mention of the submission advanced by the second to fourth defendants in the French proceedings that the domicil of the Deceased at the time of his death was French. Nor did he draw the attention of the court to the fourteen factual allegations relied upon by the second to fourth defendants in support of that submission, which allegations were all set out in the pleadings of the second to fourth defendants in the French proceedings. It is true that exhibit 8 of the claimant’s first witness statement contained a translation of those pleadings but the dispute and the fourteen allegations upon which the submission of the second to fourth defendant was based were not mentioned in the witness statement. I believe the submission and the supporting factual allegations raise a real issue as to the domicile of the Deceased at the date of his death. In my judgment the failure to mention them gave a misleading impression as to the degree of certainty attaching to this point.[54]Matter (b) is, in my judgment, much less significant. It is true that the witness statements did not expressly mention that the French court had accepted jurisdiction. However, the claimant’s first witness statement explained in clear terms that the claimant and the first defendant had sought to have the French proceedings struck out, that the application had failed and that the decision of the French court was being appealed. I do not believe there was any material non disclosure in this respect.[55]I must now consider the consequence of my finding in respect of matter (a). I believe the dispute over the domicil of the Deceased at the time of his death and the fourteen factual allegations relied upon by the second to fourth defendants in support of the submission that his domicil at that time was French ought to have been disclosed. They went to the heart of the issue the court had to consider in deciding whether the requirements of CPR 6.20(12) were satisfied and might have caused the court some doubt in coming to a conclusion. At the very least they might reasonably have been taken into account. It is no answer to say that, upon full consideration, this court is now satisfied that the requirements of CPR 6.20(12) are met. In my judgment there was a wrongful non disclosure.[56]Nevertheless, in the particular circumstances of this case, I do not believe it would be right to set aside the order of Master Bowles. It is not suggested that the claimant deliberately misled the court and, for the reasons I have given in paragraph 50 of this judgment, my conclusion on this issue cannot affect the outcome of the other matters I have to decide. It seems to me that it would be contrary to the overriding objective to make an order which would simply introduce unnecessary complexity into the proceedings. In making these observations I do not mean to excuse the failure to make full and frank disclosure. Further, I recognise that the second to fourth defendants may well have felt it necessary to make and pursue this application in the face of the opposition by the claimant to their application for an extension of time to file their acknowledgements of service. However, it seems to me that all these matters can be addressed by an appropriate order for costs.

Conclusion

[57]For the reasons given in this judgment I conclude: i) The claimant is entitled to judgment. The will must be interpreted according to English law. So interpreted, the shares in SCI du Castillon (or their proceeds) pass to the first defendant. ii) England is the most appropriate forum for the dispute to be heard. iii) There was a wrongful non disclosure by the claimant upon the application for permission to serve these proceedings upon the second to fourth defendants out of the jurisdiction. However, in the circumstances of this case, it would be contrary to the overriding objective to set aside the order by which permission was given.[58]I will hear further argument in the event that the parties are unable to agree a form of order.

order

i) Summary judgment. ii) Convenient forum. iii) Material non disclosure. In this judgment I have found it convenient to adopt the same course because the arguments (and their outcome) on the summary judgment application have a direct bearing on the question of whether or not this is the convenient forum for the dispute to be heard. Summary judgment