Angus v Emmott & Anor [2010] EWHC 154 (Ch)

Case No HC09C02102[2010] EWHC 154 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 3 February 2010
Before
MR. RICHARD SNOWDEN QC(Sitting as a Deputy Judge of the High Court)
Between
IN THE MATTER OF THE ESTATE OF ANTHONY STEEL (deceased)ClaimantMARGARET ANGUSClaimantDONALD EMMOTTDefendantsANGELA EMMOTTDefendant
Anthony Allston (instructed by Bishop & Sewell LLP) for ClaimantThe Defendants in person for in personHearing Hearing dates: 8 th and 10 th December 2009
JudgmentRICHARD SNOWDEN QC:Introduction
[1]This is an application in the administration of the estate of Anthony Steel (deceased).[2]On 13 December 1979, at Leeds Crown Court, Mr. Steel was convicted of the murder of Carol Wilkinson and sentenced to life imprisonment. He was then aged 23. He spent 19 years in prison, protesting his innocence, before being released on licence on 13 May 1998. On 28 February 2003 Mr. Steel’s conviction was quashed by the Court of Appeal following a reference by the Criminal Cases Review Commission (“the CCRC”).[3]The Court of Appeal received new evidence in 2003 which had not been available to the trial jury in 1979. The evidence proved that Mr. Steel was of abnormally low intelligence and was also abnormally suggestible. The Court of Appeal held that this evidence might well have caused the jury to take a different view of the reliability of a confession which Mr. Steel had made to the police and which had been the only real evidence against him. That confession had been obtained by the police after extensive interviews over a three day period without any solicitor being present.[4]This miscarriage of justice meant that Mr. Steel was entitled to make a claim for substantial compensation from the Home Secretary pursuant to section 133 of the Criminal Justice Act 1988. Liability has been accepted, so the compensation payable will be determined by an Assessor appointed by the Home Secretary.[5]Although interim payments of compensation were made, unfortunately Mr. Steel did not live to see his full claim made, still less determined by the Assessor. Mr. Steel died on 29 September 2007 aged 51. His claim for compensation survives for the benefit of his estate which is being administered by three executors who are the parties to these proceedings.[6]Mr. Steel spent the last few years of his life with the claimant, Mrs. Angus. She is the residuary legatee under his will which was made on 5 April 2005 and she is likely to inherit a substantial proportion of the compensation anticipated to be payable. The defendants, Mr. and Mrs. Emmott, are Mr. Steel’s sister and her husband. They are each entitled to a pecuniary legacy, as are other members of Mr. Steel’s family including four of his children and his mother, Mrs. Elizabeth Steel. Together those pecuniary legacies total £120,000.[7]This application comes against a background of dissent between Mr. Steel’s family and Mrs. Angus and because a dispute has arisen which has deadlocked the executors. The executors cannot agree the contents of the claim for compensation which is to be submitted to the Home Secretary. The essence of the dispute is whether and if so, to what extent, the written submission which has been drafted in support of the claim (“the submission”) should refer to a statement signed by Mr. Steel recounting his experiences and explaining the impact that his wrongful conviction and incarceration had upon him (“the statement”). In its final version, the statement is a word-processed document running to some 14 single-spaced pages. It takes the form of an open letter dated 5 January 2007 and it is signed on the last page by Mr. Steel.[8]Mrs. Angus contends that the submission should be sent to the Home Secretary in the form which has been settled by counsel. She says that the statement is an integral part of that draft submission and that it accurately presents Mr. Steel’s views of the harrowing experience which he suffered of being wrongly convicted and imprisoned for many years for a crime which he did not commit.[9]Mr. and Mrs. Emmott contend that the statement should not be included in the submission because, although signed by Mr. Steel, it is exaggerated and presents an inaccurate and incomplete version of events. Mr. and Mrs. Emmott contend that the statement was constructed for Mr. Steel by Mrs. Angus and by Mr. Peter Hill, an investigative journalist who had been centrally involved with the campaign to secure Mr. Steel’s release. They point out that as residuary legatee, Mrs. Angus stands to gain financially from the compensation claim, as does Mr. Hill who acts on behalf of a company called Raybrook Limited (“Raybrook”) which had an agreement with Mr. Steel under which it is entitled to be paid 10% of any compensation that might be paid to him.[10]Against that background, the first part of the application by Mrs. Angus seeks directions pursuant to CPR Part 64 that the submission be sent to the Home Secretary in the form which has been settled by counsel, or that the Court gives such other directions as it thinks fit. The second part of the application is made pursuant to section 50 of the Administration of Justice Act 1985. It seeks the removal of Mr and Mrs. Emmott as executors and their replacement by Gina Fairfax who is a partner in Bishop & Sewell LLP, who are the solicitors acting for Mrs. Angus. It is said that this step is necessitated by the hostility and breakdown in relations between the executors and that it will enable the submission to be finalised, the claim for compensation to be made and determined, and the administration of Mr. Steel’s estate to be completed.

Background

[11]The background facts to this dispute are complex and the materials before me are voluminous. The statement of Mr. Steel which is at the heart of the dispute itself goes back to his conviction in 1979. Given the matters in issue, it is necessary for me to set out the history of the dispute, including the correspondence, in some detail.[12]The murder of Miss Wilkinson took place in Bradford on 10 October 1977. She was walking to work when she was savagely attacked, sexually assaulted and battered about the head with a large stone. Mr. Steel lived on the same estate as Miss Wilkinson, but he was not a suspect. At the time of the murder he was living with a Pamela Ward who was the mother of his two sons, Mark and Jason. However, he left Ms. Ward in 1978 to marry Michelle Smith, with whom he had a daughter, Julia.[13]Some 18 months after the murder, in April 1979, Mr. Steel’s mother-in-law provided some information to the police which led to Mr. Steel being arrested. Over the course of the next three days he was interviewed a total of seven times by the police. During the first three interviews, he denied having had anything to do with the murder. On the fourth occasion, he began to make certain admissions of presence at the murder scene. On the fifth occasion he made a written statement, confessing to the murder. Mr. Steel did not see a solicitor until after his sixth interview, at which stage he told the solicitor that he wished to retract his confession.[14]At his trial, the case for the Crown depended almost entirely upon the admissions made by Mr. Steel under police questioning. The essential question left to the jury was whether Mr Steel’s confession was voluntary and true; or whether, as he said, it had been produced as a result of the circumstances of his detention and interviews and had been put in his mouth by police insistence and suggestions. Mr. Steel was convicted by a majority of 11-1.[15]Following his conviction and sentence, Mr Steel made an application for leave to appeal which was refused by the Court of Appeal on 17 March 1981. Mr. Steel’s wife, Michelle Smith, divorced him as a result of his conviction and imprisonment.[16]Throughout his time in prison, Mr. Steel continued to protest his innocence. His family and friends contacted an organisation known as “Justice”, which in turn contacted Mr. Hill, who was then the producer of the BBC’s “Rough Justice” programmes. Mr. Steel’s case was featured in a documentary which was transmitted in 1985. This was then followed up by a petition to the Home Office. However, although the South Yorkshire Police conducted an investigation into Mr. Steel’s arrest and conviction, in 1987 the then Home Secretary declined to intervene in his conviction.[17]In 1985, Mr. Steel was being held at the Frankland prison in County Durham. After the transmission of the “Rough Justice” programme, Mrs. Angus, who lived near the prison, made contact with Mr. Steel by correspondence. She started to visit him shortly afterwards. Mrs. Angus’s evidence is that she visited Mr. Steel regularly, that they became very close and that they intended to marry if he was released on parole.[18]However, although Mr. Steel became eligible to apply for parole in 1987, his refusal to accept that he was guilty of the crime of which he had been convicted undoubtedly contributed to the decision of the parole board that he should not be released. Mrs. Angus’s evidence is that when Mr. Steel’s application for parole was refused in 1989, Mr. Steel indicated that he did not wish her to visit him in prison any more and their relationship ended.[19]Mr. Steel was subsequently transferred to Lindholme prison in 1992. In 1993 he was contacted by his daughter, Julia, then 14 years old, who had been told of the “Rough Justice” programme. She joined the efforts to clear Mr. Steel’s name and secure his release. Those efforts were spurred on by the announcement that the CCRC would be created and that it would start operations in early 1997.[20]In March 1996, after he had been moved to a prison in Lincolnshire, Mr. Steel was seen by a consultant psychologist, Ms. Olive Tunstall. In her report dated 11 April 1996, Ms. Tunstall concluded that Mr. Steel was “educationally retarded” and abnormally suggestible and that he would have been potentially vulnerable in the context of being interviewed by the police. A petition to the CCRC which referred to Ms. Tunstall’s report was prepared by Mr. Hill and submitted in late 1997.[21]Mr. Steel was finally released on licence on 13 May 1998, when he was aged 41. After Mr. Steel’s release, he returned to live with his family in Halifax, and he then set up home with Sarah Dundon, a woman whom he had met whilst in a hostel in an open section of Nottingham prison in 1997. Ms. Dundon had a child by a previous relationship, and she and Mr. Steel subsequently had a daughter together.[22]After his release, efforts to clear Mr. Steel’s name continued. In that regard, on 25 October 1999, Mr. Steel and Mr. Hill signed an agreement under which Mr. Steel purported to grant various rights to Raybrook, which I am told is a company in which Mr. Hill has an interest and of which he is a director (“the Raybrook agreement”). The relevant terms of the Raybrook agreement were as follows:- “I, Anthony Steel, enter into the following contract with Raybrook Ltd. All rights in the story of my life are assigned to Raybrook Ltd. in perpetuity. This assignment covers all aspects of publication of past and future work done and is exclusive to Raybrook Ltd. In return for this assignment, Raybrook Ltd contracts to pursue my petition to the Criminal Case Review Commission until a final decision is made in my case. In the event of my petition becoming an appeal in the Court of Appeal and that appeal being successful, Raybrook contracts to pursue on my behalf the matter of compensation for the many years I spent in prison unjustly. I assign that duty to Raybrook Ltd in perpetuity. In the event of my death prior to any of the above, I assign Raybrook Ltd to administer the monies that may come to me in compensation. For this and the other work Raybrook Ltd has done, Raybrook Ltd shall be paid ten per cent of the sum total of any compensation payment granted.”[23]In July 2000, the CCRC decided to refer Mr. Steel’s case back to the Court of Appeal. In May 2001 Ms. Tunstall interviewed and assessed Mr. Steel for a second time, repeating the tests she had administered in 1996. She produced a second report which concluded that Mr. Steel had a full scale IQ of only 65 and that he functioned near the borderline of abnormality in the case of both suggestibility and compliance. In July 2001, a consultant clinical psychologist appointed by the Crown confirmed the findings of Ms. Tunstall and concluded that any confession obtained from Mr. Steel would be unsafe.[24]In light of this new evidence, on 28 February 2003 the Court of Appeal allowed Mr. Steel’s appeal and quashed his conviction. The full reasons of the Court of Appeal were subsequently set out in a judgment delivered on 10 June 2003 (see [2003] EWCA Crim 1640). The essence of the decision appears from the following extract:
“Although …. the evidence of the appellant’s abnormally low IQ could have been established at trial, it is the combination of his borderline abnormality in terms of suggestibility and compliance and of his unforeseen abnormally low IQ which rendered him particularly vulnerable to interrogation; and this would be so irrespective of the appellant’s allegations concerning violence and the threats of violence, inducements, and the refusal of access to a solicitor. It is not possible to regard the conviction as safe when the essential issue, indeed the sole issue on which the jury were asked to judge the appellant’s case was whether his confession was voluntary and true or not.”

Events after Mr. Steel’s conviction was quashed

[25]At about the time that his conviction was quashed in 2003, Mr. Steel’s relationship with Sarah Dundon ended. He resumed contact with Mrs. Angus and moved from Halifax to Gateshead, Tyne and Wear to live with her in the Autumn of 2003.[26]The precise circumstances surrounding the end of Mr. Steel’s relationship with Ms. Dundon and the resumption of his contact with Mrs. Angus are contentious and have contributed to the tension between the executors. In a psychiatric report that was subsequently prepared in 2006, Mr. Steel is recorded as having attributed the breakdown of the relationship to concerns that Ms. Dundon was seeing a former partner. When Ms. Dundon gave birth to a boy after their relationship had ended, doubts were expressed as to whether Mr. Steel was the father of her child and Mr. Steel did not leave any money to the boy in his will. Recent tests have, however, confirmed that the baby was indeed Mr. Steel’s son.[27]For their part, Mr. and Mrs. Emmott have suggested that Mrs. Angus opportunistically sought to renew her relationship with Mr. Steel after his conviction was quashed, and when it became apparent that he would be entitled to apply for substantial compensation. Mrs. Angus does not accept that and says that it was Mr. Steel who found her with the help of Mr. Hill.[28]After his conviction was quashed, Mr. Steel instructed Stephensons Solicitors LLP (“Stephensons”) to prepare an application for compensation to the Home Secretary. Liability was not in issue and interim payments of compensation amounting to £110,000 were paid to Mr. Steel during his life. I am told that he paid 10% of that money to Raybrook in accordance with the terms of the Raybrook agreement.[29]However, substantial problems were encountered in the preparation of a formal claim. A major issue for Mr. Steel was that the Prison Service said that it had lost his medical records. These were thought to be important to the claim for compensation, because Mr. Steel contended that his health had been damaged whilst he had been in custody, in particular by the effects of prescription drugs such as Largactyl, which had been given to him whilst he was in prison, and by a belief that he had suffered a misdiagnosed heart attack whilst in prison. There is no doubt that Mr. Steel was in poor health at the time of his release. Shortly after his release it was discovered that he had had a small stroke and that he had severe coronary heart disease. He underwent major heart surgery in 1999, but unfortunately there were complications: the operation improved matters but did not cure his heart problems, and Mr. Steel suffered a number of further strokes and began to suffer from epilepsy.[30]As well as pursuing Mr. Steel’s prison medical records, Stephensons obtained an employment report upon Mr. Steel’s career prospects and lost earnings from Mr. Keith Carter of Keith Carter & Associates in September 2005 (subsequently up-dated on 22 May 2008) (“the employment report”). A psychiatric report on Mr. Steel was also obtained in 2006 from Dr. Kim Fraser, a Consultant Forensic Psychiatrist (“the psychiatric report”).[31]In addition, the statement signed by Mr. Steel and dated 5 January 2007 was prepared. This is a lengthy document, written in the first person, which gives a highly personal account of Mr. Steel’s conviction, time in prison and attempts to secure his release. The tone of the statement can be illustrated by its opening paragraphs:
“How can I tell you how it feels to be imprisoned for 20 years after I was convicted of a crime I did not do? For example, how is it possible to describe my feelings when I got a letter from the daughter I lost and never known? Julia was a babe in arms when my ordeal began. I have suffered more than most people can imagine. I have had my human dignity torn from me in a way nobody should feel. I have been betrayed by those nearest to me. I have built up my hopes, only to see them die. I dream about these things every night. For nearly thirty years now I have been a man behind the door. This is my story. In 1979 I was tricked into making a false confession to murder I had nothing to do with. Since then I had kept a diary. Some of it was written. The prison screws took that away from me when I was set free. They said that the paper belonged to the prison service. But the truth is, they did not want me to take away any record of what happened to me during those lost twenty years. But some of it was recorded on lots of small tapes that my family sent to me. I made that record because I try never to be tricked again. Because I shall always have a record of where I have been and what I have done. The weak old man who writes this is not the same as the boy who was sent to jail all those years ago. A lot has happened to take me real self away from me. I have been asked to remember twenty years of my life within those grey walls. I cannot remember it all. It made my brain numb. But some parts are very strong. They are the pictures like the door that woke me up in the middle of the night. They are the things that make me avoid particular places. They still cause my heart to beat faster and the fear to come up my throat. They are the pictures and noises that I will take to my grave.”

The disputes between the executors begin

[32]As I have stated, Mr. Steel died on 29 September 2007. The disputes between the executors began immediately, because they could not agree upon where Mr. Steel should be buried. Mrs. Angus wanted Mr. Steel to be buried near her home in Gateshead: Mr. and Mrs. Emmott, supported by Mr. Steel’s mother, wanted him to be buried in Halifax where they lived. In October 2007 Mrs. Angus brought proceedings against Mr. and Mrs. Emmott under CPR Part 64 in the Newcastle District Registry. Those proceedings, which obviously caused considerable friction between the parties, were resolved by a judgment in favour of a burial in Gateshead. That took place on 14 November 2007.[33]After Mr. Steel’s death, the draft submission to the Home Secretary was revised and settled by counsel on 8 September 2008. The draft runs to 30 pages plus appendices and claims substantial compensation. About £1.495 million plus interest is sought for non-pecuniary losses including loss of liberty, malicious prosecution, damage to reputation, psychiatric injury and for a number of aggravating factors in relation to the manner in which the police behaved in extracting the confession from Mr. Steel and in relation to the prosecution of Mr. Steel. A further £657,618 including interest is sought on account of Mr. Steel’s pecuniary losses, i.e. his loss of earnings from 1979-2007. The total amount claimed exceeds £2.1 million.[34]The draft submission places significant reliance upon the statement of 5 January 2007. It includes numerous quotations from the statement to underpin the claims for non-pecuniary losses. The submission also uses the statement to support the claims for loss of earnings. In support of claims for the level of earnings which Mr. Steel would have obtained had he not been imprisoned, the submission asserts, “it is likely that [Mr. Steel] would have improved his abilities in English substantially as is demonstrated by his witness statement, which is annexed.”[35]Shortly before the draft submission was settled by counsel, Mrs. Angus wrote to Mr. and Mrs. Emmott on 5 August 2008, notifying them that preparation of the claim was in its last stages and suggesting a meeting “on neutral territory” to discuss how the executors should proceed. I was not supplied with a copy of the response from Mr. and Mrs. Emmott, but it is apparent that it was not positive, because on 26 August 2008 Mrs. Angus wrote to them again urging a meeting to consider how the administration of the estate should proceed. Mrs. Angus indicated that because of Mr. and Mrs. Emmott’s response, she would like to have Mr. Hill present “as an advisor to both sides”.[36]However, relations between the executors became further strained as a result of a claim by Sarah Dundon (now Sarah White) on behalf of her two children under the provisions of the Inheritance (Provision for Family and Dependants) Act 1975. Mrs. Angus was not satisfied that Sarah White’s son was Mr. Steel’s child, whilst Mr. and Mrs. Emmott, who had known Sarah Dundon (as she then was) when she had lived with Mr. Steel, were of the view that the boy was indeed Mr. Steel’s son.[37]Matters came to a head on 12 September 2008 when Mr. Brendon Treanor of Stephensons sent the final draft of the submission to the executors for their approval and for written authority to submit it to the Home Secretary. It rapidly became apparent that Mr. and Mrs. Emmott took strong exception to the contents of the statement of 5 January 2007 and refused to give their consent to the submission being sent if it made reference to the statement.[38]The delay in finalisation of the submission appears to have prompted Mr. Hill to intervene more directly in matters on behalf of Raybrook. Earlier in 2008 he had sent a letter to Stephensons drawing attention to the Raybrook agreement, noting that Mr. Steel had honoured it by paying Raybrook 10% of the interim compensation he had received during his lifetime, and registering a claim against Mr. Steel’s estate to be paid 10% of the final payment of compensation when received. Mr. Hill also asserted that Raybrook “continues to do work and commit resources to the claim for compensation - in accordance with the terms of our contract.”[39]In late September 2008 Mr. Hill also wrote directly to Mr. and Mrs. Emmott concerning the finalisation of the submission. I do not know the contents of that letter because a copy was not provided to me. However, it prompted a reply from Mr. and Mrs. Emmott dated 1 October 2008 in which they indicated that they were appalled by the content of the statement signed by Mr. Steel (which they described as “falsified”) and stated that they had told Mr. Treanor that they would only agree to the submission being put forward to the Home Secretary if Mr. Steel’s statement was totally omitted from it.[40]Surprisingly, Mr. Hill’s reply of 2 October 2008 denied all knowledge of the statement or its contents. He stated:
“I was really shocked to get your letter. I had no idea that something like this was going on. And further, I cannot think what Tony wrote that has caused you so much distress. What on earth are all these mistruths you write about? Of course, I know nothing about what he put in this statement you mention, though I did discuss tactics about the compensation with Tony on a regular basis. I suppose it is possible that this statement you refer to is something to do with those tactics, though I cannot see how. Brendon [Treanor] will know more. ….. I do know quite a bit about the Assessor and the tactics needed to get money out of him. If Tony’s statement which you mention says bad things about you – though I cannot see why on earth this should be – you may rest assured that nothing of the content will ever become public - unless you make it so. As for its wording, I presume that Tony consulted a lot with Brendon Treanor about it. To be honest, I have not heard of any “Tony’s statement” before, though I remember him telling me that he was writing about his days in prison as part of a “trauma” statement. This was essential as one part of the submission. It has to be done as part of the submission. It is usually done by a psychologist.”
[41]It is apparent that Mr. and Mrs. Emmott spoke by telephone to Mr. Treanor at Stephensons in mid-October, because on 16 October 2008 he wrote to them referring to two points which they had made about Mr. Steel’s statement and asking them to provide written details of anything else with which they disagreed.[42]Mr. and Mrs. Emmott replied to Mr. Treanor by a letter dated 29 October 2008. I have not been provided with a copy of that letter. However, it did prompt Mr. Treanor to write to Mr. and Mrs. Emmott reiterating that he understood that they did not agree with the entirety of the statement of 5 January 2007, but that they were not being asked to agree to that statement. He indicated that they were only being asked to agree the submission as drafted by counsel and if they did not do so, then to specify which paragraph and which particular words of the submission that they had difficulty with.[43]Mrs. Angus also wrote to Mr. and Mrs. Emmott on 6 November 2008 seeking details from them of precisely what objections they had to the submission. Mrs. Angus made the point that until Mr. and Mrs. Emmott were clear about what they objected to, she couldn’t consider whether any changes should be made. Her letter stated, “However, I must state that, as I understand it, it is irrelevant whether or not the submission has discrepancies or not. I know that Tony spent many months working on the submissions and if he wished it to go to the Assessor, then it should go in as he left it and agreed it. It is not for us as executors to contradict him. Whether I agree with him or not, what he wrote is his own view of the matter and no one has a right to change that.” (emphasis in original) As the submission had been redrafted by counsel following Mr. Steel’s death, I think that it is clear that Mrs. Angus’s references to the “submission” were in fact references to the statement of 5 January 2007. (emphasis in original)[44]Mrs. Angus wrote a further letter the next day, mainly dealing with the Inheritance Act proceedings concerning Sarah White, but suggesting that as a way forward, Mr. and Mrs. Emmott might consider detailing their objections to the statement in a letter to Mr. Treanor which might be attached to the submission.[45]On 10 November 2008 Mr. Treanor wrote a long letter to Mr. and Mrs. Emmott seeking to explain the purpose of the submission and his views of the relevance of the statement to the submission. Mr. Treanor acknowledged Mr. and Mrs. Emmott’s concern that if any part of the submission was untrue “then that could possibly rebound on Tony’s claim” but disagreed with them in relation to the two inaccuracies which he thought they had identified. He concluded, “Summarising, we need your written instructions on what, if any submissions you disagree with and the reasons then we will consider coming to see you to discuss that but ultimately if you can’t consent to the submissions being put forward as they are drafted then ultimately you will have to get separate representation and the same will apply to Mrs. Angus and that will unfortunately make a fairly sad predicament worse.”[46]Also on 10 November 2008 Mr. Hill wrote on behalf of Raybrook to Mr. and Mrs. Emmott complaining of the delays in finalisation of the submission. Notwithstanding the terms of the Raybrook agreement entered into in 1999, Mr. Hill told Mr. and Mrs. Emmott, “According to the contract I made with Tony when he was in prison, the company should have got the money when the conviction was quashed – in 2003. Now, five years later, the company is still waiting. We also feel that with the situation as it is, we are not likely to get enough to even cover our costs…”[47]Thereafter the attitudes of the parties hardened. In a letter dated 17 November 2008 Mr. Hill wrote to Mr. and Mrs. Emmott and to Mr. Treanor threatening legal action to recover what he asserted was a debt due to Raybrook from Mr. Steel’s estate. Mr. and Mrs. Emmott wrote to Mr. Hill on the same day alleging that he had “manipulated and controlled” Mr. Steel and asking for a copy of the contract to which he had referred in his letter. They repeated their view that Mr. Steel’s statement was “inaccurate and full of mistruths” but did not give any further particulars.[48]Mr. Hill then responded, refusing to provide a copy of the contract on the basis that Mrs. Angus already had a copy, and rebutting Mr. and Mrs. Emmott’s allegations that he had manipulated Mr. Steel. Mr. Hill reminded Mr. and Mrs. Emmott of the efforts which he had made over many years on Mr. Steel’s behalf and commented, “I have asked you for the reasons for the present situation. You have supplied me with only a general idea of the problem. I have offered whatever help I can give to help you resolve your problem. It is of course up to you whether you accept such an offer or not. However, I am totally unaware of what the detail of your objection is. You have mentioned “Tony’s statement”. I do not know what this “statement” is – I can only presume that you mean his submission. That submission was not written entirely by him. There were various contributions to it – one of them by me. Are you suggesting that you wish to change something that I have written? If so, please let me know.”[49]In December 2008 Mrs. Angus consulted Bishop & Sewell, who wrote to Mr. and Mrs. Emmott on 30 December 2008 urging them to contact Mr. Treanor at Stephensons to try to resolve the issues regarding the submission. The letter concluded by notifying Mr. and Mrs. Emmott that if the issue regarding the submission could not be resolved, she would have no other option but to make the present application for them to be removed as executors.[50]Mr. and Mrs. Emmott’s response was to write to Mrs. Angus and to Mr. Hill at Raybrook on 12 January 2009 reiterating concerns over the legitimacy of any contract with Raybrook and asking for a copy of it. They also repeated their unparticularised assertion that there were “so many discrepancies with [Mr. Steel’s] statement”, and asked each of Mr. Hill and Mrs. Angus whether they had had any part or influence in the drafting of the statement.[51]Mr. Hill’s response, dated 14 January 2009, accused Mr. and Mrs. Emmott of attempting to breach the agreement with Raybrook but again refused to provide a copy of it. He indicated that Raybrook was taking legal advice about Mr. and Mrs. Emmott’s allegations. Mr. Hill’s letter studiously avoided answering the question of whether he had had any part in the drafting of Mr. Steel’s statement[52]On 4 February 2009 Mr. and Mrs. Emmott wrote to Mrs. Angus setting out their three concerns. The first related to their concerns about whether the Raybrook agreement was binding following Mr. Steel’s death, the second concerned Mrs. Angus’s opposition to the Inheritance Act claim which had been made by Sarah White, and the third concerned the submission and the statement. Mr. and Mrs. Emmott stated, “Which now leads appropriately onto our third and very serious concern, the submission and Anthony’s so-called factual statement, why has this period of my brother’s life which would involve his release on life licence and his relationship with Sarah Dundon a very turbulent relationship, but under the circumstances a very turbulent period of Anthony’s life, which has simply been omitted from his statement. Margaret, we do not need you or your advisor Peter Hill, to fabricate Anthony’s or our lives, as a tactic to get money out of the Assessor, with this so-called statement of fact, which has been contrived by you and your contriver and I can assure you that [we] will not take part of this scheme to deceive the Assessor…”[53]The letter then promised to send a document to Mr. Treanor with all the “irregularities” in the statement highlighted. It is unclear whether Mr. and Mrs. Emmott did so, and no copy was subsequently produced by them in response to an order made by Master Teverson in these proceedings.[54]Instead, what appears to have happened is that Mrs. Angus’s solicitors wrote to Mr. and Mrs. Emmott on the same date, indicating that she was going to issue proceedings against them. Mr. and Mrs. Emmott instructed Ramsdens, solicitors, to act for them, initially in relation to the Inheritance Act proceedings, but the two sets of solicitors then corresponded over several months in relation to the submission. There was, however, no elaboration of their specific concerns about the statement. Once the dispute between the executors had reached the stage of threats of litigation, Stephensons appear to have declined to co-operate with either side.

The present proceedings

[55]The present proceedings were issued on 19 June 2009. They were supported by a witness statement of Mrs. Angus dated 25 May 2009 in which she identified the compensation claim as the only asset of any substance in Mr. Steel’s estate, and the Inheritance Act claim by Sarah White as the only other issue outstanding and awaiting resolution of the compensation claim. Mrs. Angus drew attention to some of the correspondence to which I have referred and expressed her view that no coherent explanation of why Mr. and Mrs. Emmott objected to Mr. Steel’s statement had been forthcoming. She also expressed the view that, “because of the animosity and apparent distrust which [Mr. and Mrs. Emmott] have towards me as their co-executor, I do not believe it will be possible for us to work together in the interests of the beneficiaries, leaving the estate in a most unsatisfactory situation.”[56]On 27 July 2009 Master Teverson ordered Mr. and Mrs. Emmott to serve written evidence in answer to the Claim attaching a document setting out their proposed amendments to the compensation claim and copies of any documents sent by them to Stephensons relating to the compensation claim. The result was the production by Mr. and Mrs. Emmott of an unsigned witness statement running to some 46 pages and accompanied by further copy documents totalling in all some 105 pages.[57]Mr. and Mrs Emmott’s witness statement was prepared by them without legal assistance. It is a long document in unconventional format which is very hard to follow. However, it was plain that Mr. and Mrs. Emmott’s fundamental contention was that the references to the statement dated 5 January 2007 should be removed from the submission and that it should not be annexed to the submission.[58]In response, Mrs. Angus filed a second witness statement dated 21 September 2009 which attempted to address the main points made by Mr. and Mrs. Emmott.[59]At the hearing before me, Mrs. Angus was represented by Mr. Allston. Mr. and Mrs. Emmott represented themselves. Mr. and Mrs. Emmott produced a lengthy skeleton argument running to 29 pages in similar format to their witness statement, which they supplemented on the second day of the hearing by the production of a further written document running to 17 pages. Both documents were accompanied by further annexed documents.[60]I should record that Mr. Allston presented Mrs. Angus’s case with exemplary fairness, and that in spite of the emotions to which this case has given rise, Mr. and Mrs. Emmott also conducted their case with creditable moderation.

The issues relating to the submission

[61]As I have indicated, Mrs. Angus’s first application is for a direction that the submission which has been drafted should be submitted to the Home Secretary forthwith and in its present form.[62]Whatever the precise jurisdictional basis for asking the Court to intervene in this way, which is a matter to which I shall return below, at the outset of his argument Mr. Allston accepted that he could not obtain a direction in those terms if the submission as presently drafted was shown to be inaccurate in a material respect.[63]On analysis, a number of the points raised by Mr. and Mrs. Emmott as to the existence of errors in the draft submission do seem to me to be well founded. As examples, I should refer to the issue of home visits, one aspect of the employment report, and the reliance which the submission places upon the quality of English used in the statement.[64]Home visits. Paragraph 19 of the submission states, “Mr. Steel was granted one escorted home visit but his applications to see his family at home, because his father was ill and unable to visit, were rejected on numerous occasions. The records show rejections in February 1991, December 1991, November 1992, March 1993 and May 1993. On each occasion, the application was turned down by the Home Office on account of Mr. Steel continuing to deny the offence. The applications had been supported by the relevant prison authorities and probation.”[65]The same point is picked up again in paragraph 24 where, after commenting upon the support given to Mr. Steel by his parents, who visited regularly until ill health made it more difficult for them to do so, the submission repeats that frequent requests for home visits by Mr. Steel were rejected by the Home Office on account of Mr. Steel continuing to deny the offence. It is said that this only changed when Mr. Steel was moved to a category D prison in November 1994.[66]These assertions are not specifically relied upon in the submission as justifying an uplift in the basic award for loss of liberty, but they are nevertheless plainly factors which, if accurate, might fairly be considered by the Assessor when deciding upon the correct level of compensation under this head of loss.[67]Mr. and Mrs. Emmott’s evidence is that Mr. Steel was in fact permitted eleven home visits between June 1991 and July 1994 whilst Mr. Steel was being held at Lindholme, a category C prison. Their evidence indicates that they have copies of diary entries made by Mr. Steel’s father which substantiate their claims. In her evidence in reply, Mrs. Angus accepts that Mr. and Mrs. Emmott may be correct, but indicates that Mr. Steel still told her that he was allowed fewer home visits than he would have expected because he continued to deny that he had committed the murder.[68]It seems to me, and Mr. Allston accepted in his reply, that the submission was inaccurate and ought to be corrected on this point.[69]Employment prospects. The submission relies upon the employment report in support of a claim for loss of earnings. In that employment report, Mr. Carter makes a number of references to employment conditions in the North-East of England to support the figures which he produces for Mr. Steel’s loss of earnings, and in particular to support the proposition that, had he not been imprisoned, Mr. Steel would have had good prospects of remaining in employment. For example, Mr. Carter contrasts Mr. Steel’s employment history of having worked for the same employer for 4 years prior to his arrest favourably with the unemployment rate which was then prevalent in the North-East. Mr. Carter also comments that the high unemployment for males in the North-East has been a feature of the shipyards and steel industries and not necessarily the service sector or public sector where Mr. Steel would most likely have looked to be employed.[70]The comments about the North-East of England are not inaccurate in themselves, but as Mr. and Mrs. Emmott observe, their relevance to Mr. Steel’s position is questionable when it is recalled that until his arrest Mr. Steel lived in Bradford, which is not usually described as being in the North East of England, nor as affected by unemployment in shipyards and steel industries. Mr. and Mrs. Emmott suggest, I think correctly, that Mr. Carter may have been misled into error by the fact that in the last few years of his life, Mr. Steel lived in Gateshead, Tyne and Wear, with Mrs. Angus.[71]I have no idea whether Mr. Carter’s conclusions will in any way be affected once this matter is pointed out to him, but it seems to me, and Mr. Allston did not dispute, that Mr. Carter ought to be given the opportunity to reconsider and amend his report before it is submitted. To the extent that Mr. Carter’s views might change, the submission will need to be altered accordingly.[72]The quality of English used in the statement. The statement is described in paragraph 26A of the submission as having been “written by [Mr. Steel] on 5 January 2007”. Moreover, as I have indicated, it is expressly relied upon in paragraph 64 of the submission in support of an assertion that had Mr. Steel not been imprisoned, “…it is likely that he would have improved his abilities in English substantially as is demonstrated by his witness statement, which is annexed.”[73]As such, the impression given by the submission as presently drafted is that the statement is Mr. Steel’s own work. The passages from the statement, written in the first person, which are used to illustrate the submission, are all the more powerful as a result.[74]However, Mr. Steel was, as the experts who gave evidence to the Court of Appeal in 2003 found, of low intelligence and suggestible. Moreover Mr. and Mrs. Emmott have produced examples of handwritten personal correspondence of Mr. Steel to his mother dating from 2006 and 2007 which is notably less fluent than the statement. In these circumstances I think that Mr. and Mrs. Emmott’s suspicions about the authorship of the statement were justifiably aroused.[75]It will also be recalled how, in correspondence, Mr. Hill went out of his way to deny any knowledge of the statement, how Mrs. Angus had stated that whether she agreed with Mr. Steel or not, “what he wrote is his view of the matter and no one has a right to change that”, and how requests by Mr. and Mrs. Emmott that Mr. Hill and Mrs. Angus indicate whether they had any role in the production of the statement went unanswered. In my view, those denials and silence can only have fuelled Mr. and Mrs. Emmott’s suspicions.[76]Although the point had been raised in correspondence, Mrs. Angus’s first witness statement did not address the issue of how the statement had been prepared. It was only after Mr. and Mrs. Emmott raised the point again in their witness statement that Mrs. Angus’s evidence in reply accepted that the statement had not in fact been composed by Mr. Steel alone, but that he had been assisted in that regard by both Mrs. Angus and Mr. Hill. Mrs. Angus stated, “Although [Mr. Steel’s] literacy skills had improved very considerably whilst he was in prison and after his release in 1998, he still needed help in composing this narrative of his existence whilst he was a prisoner and also after his release. To my knowledge Mr. Hill did give him help with producing this statement which records his story… … I myself also gave the deceased some help with the statement/letter, for example in certain instances how best to phrase what he wanted to say. [Mr. Steel] prepared the final draft on his computer and we both read it through prior to the deceased signing. I thought my helping him was only natural and at the time we were of course living as man and wife. I certainly did not see anything wrong with either myself or Peter Hill having assisted him, so long as the statement said what he wanted it to say, and he was satisfied that it was true.”[77]On the basis that the composition of the statement is not in fact all Mr. Steel’s own work, it is obvious that the submission cannot be filed in its current form. The suggestion in paragraph 64 of the submission that the statement demonstrates that it is likely that Mr. Steel would have improved his abilities in English substantially had he not been imprisoned is misleading and cannot be justified.[78]For these reasons I decline to give the direction sought by Mrs. Angus that the submission should be filed in its current form.

Surrender of discretion

[79]The defects in the draft submission which I have identified above are curable. However, they are not the central issue which has divided the parties. The main dispute is whether the substantive contents of the statement are accurate. Since Mr. Steel is dead, the statement cannot now be altered, so if there are inaccuracies in it, the question arises as to whether, and if so how, it should be quoted and relied upon in the submission. That is a far more difficult issue to resolve which raises the question of the extent to which it is appropriate for the Court to exercise its own discretion in place of the discretion of the executors.[80]In The Public Trustee v. Cooper [2001] WTLR 901 at 922-925, Hart J. referred with approval to an unreported decision given in chambers by Robert Walker J. (as he then was) in 1995 which sought to describe four types of situations in which a trustee (or executor) might apply to the court to adjudicate upon a course of action proposed or actually taken. These can be briefly summarised as(1) where the issue is whether some proposed action is within the trustees’ powers,(2) where there is no real doubt that the trustees have the power to do what they propose, but because the decision is so momentous, they wish to have the blessing of the court,(3) where the trustees wish to surrender their discretion and have the court exercise it in their place, and(4) where the trustees have taken some action, but their conduct is impugned and they therefore seek the court’s ruling on what they have done. Hart J. also observed that there might be variations within each category and that a particular case might straddle more than one category.[81]It seems to me that Mrs. Angus’s application falls within category (3) – an attempt to surrender discretion to the court as a result of deadlock between the executors. In such a case, as Robert Walker J. indicated, the court is asked to exercise its own discretion rather than to give its blessing to a course of action upon which the trustees are resolved, but for which, because of its momentous nature, they wish to have the protection of the court.[82]In giving the judgment of the Privy Council in Marley v. Mutual Security Merchant Bank and Trust Co. [1991] 3 All ER 198 at 201d-g, Lord Oliver observed that in a case of a surrender of discretion “it is of the highest importance that the court should be put into possession of all the material necessary to enable that discretion to be exercised”. Lord Oliver indicated that if the court was asked to act on incomplete information, the proper course would be to dismiss or adjourn the application.[83]As I observed to Mr. Allston early in the argument in this case, an obvious difficulty in this case is that I am not in possession of all of the materials held by Stephensons and which were available to counsel who drafted the submission. As such I am unable, for example, to test whether some of the matters in the statement to which my attention has been drawn by Mr. and Mrs. Emmott are consistent with other documents including the records disclosed by the Prison Service relating to Mr. Steel. I therefore cannot reach a fully informed view of the significance or otherwise of any alleged inaccuracies in the statement.[84]I am also not in a position to conduct any type of investigation with witnesses such as Mr. and Mrs. Emmott or Mrs. Angus and Mr. Hill with a view to resolving any of the factual questions which have arisen. That would be essential if I was to be asked to exercise any type of forensic judgment of the type normally conducted by solicitors and counsel when considering which points to emphasise, which evidence to use, and how best to present a claim.[85]Moreover, I have no doubt, and Mr. Allston readily accepted, that it would be inappropriate for the Court itself to engage in the exercise of drafting or giving drafting instructions or suggestions to solicitors and counsel engaged in the production of the submission which is to be sent to the Home Secretary.[86]Finally, I am acutely aware that any observations that I make upon the detailed contents of the statement may well come to the attention of the Assessor. Whilst Mr. Allston was keen that I should give whatever assistance I could to those preparing the submission in relation to the use of the statement, he urged me to exercise caution in this regard to avoid any unnecessary risk of prejudice to the claim by the estate.[87]Taking all these factors into account, I consider that this is a case in which I should decline the invitation to accept a surrender of the executors’ discretion. I do not propose to give directions as to whether, and if so how, the statement should be relied upon in the submission.

Mr. and Mrs. Emmott’s concerns over the statement

[88]Although I do not propose to give directions as to the use to which the statement should be put, in deference to Mr. and Mrs. Emmott’s concerns and because they have a bearing upon Mrs. Angus’ application to remove Mr. and Mrs. Emmott as executors, I should make some brief observations upon some of the major points which they raised concerning the statement.[89]The first observation is that the fact that Mr. Steel had assistance in preparing the statement before he signed it does not mean that the statement must necessarily be excluded from the submission. There is nothing wrong in principle with Mr. Steel having had assistance to prepare his statement. Witnesses in legal proceedings are almost invariably assisted to prepare their statements.[90]Likewise I do not think that it is necessarily wrong that the persons helping Mr. Steel to prepare his statement had a financial interest in the outcome of the compensation claim. After all, Mr. Steel himself had a financial interest in the compensation claim.[91]However, it is unfortunate that given the combination of Mr. Steel’s abnormal suggestibility and Mrs. Angus’s and Mr. Hill’s financial interest in the compensation claim, the process of preparation of Mr. Steel’s statement does not, at least so far as I am aware, seem to have been supervised by a solicitor who would have been experienced in the preparation of evidence and mindful of the provisions of that CPR 32PD 18.1 that a witness statement must, if practicable, be in the witness’s own words.[92]In relation to the detail of the statement, Mr. and Mrs. Emmott pointed to two passages which describe a sequence of events in the wrong chronological order. The first is incorporated verbatim into paragraph 26B of the submission and suggested, wrongly, that Mr. Steel was only moved to Wakefield after his first appeal was rejected by the Court of Appeal in March 1981.[93]The second example given by Mr. and Mrs. Emmott relates to passages in the statement which suggest his relationship with Mrs. Angus was still alive at the time that Mr. Steel was transferred to Lindholme, and that it was the distance that was put between them that was the cause of the relationship ending. In fact, as I have indicated, Mrs. Angus’s evidence and comments in Mr. Steel’s prison records concerning his mental state indicate that the relationship ended after the parole application was refused in 1989, some three years before Mr. Steel was moved to Lindholme.[94]In his reply submissions, Mr. Allston very fairly accepted that in these two respects the statement was inaccurate. He even went so far as to accept that the account of the termination of the breakdown of the relationship between Mr. Steel and Mrs. Angus gave a false impression.[95]Although the statement is inaccurate in these respects, I do not think that this necessarily casts any doubt upon the reliability and utility of the statement as a whole. The statement does not recount events in a strictly chronological order and it is unsurprising that after so many years, errors might have crept in. It is notoriously difficult for most people to recall precise sequences of events after the lapse of significant periods of time and I think that to expect the statement to be absolutely precise is unreal.[96]Moreover, and perhaps more importantly, I cannot ascribe any sinister motive to these errors. It seems to me that the points which are incorrectly made would have little, if any, significance for the purposes of a claim to compensation.[97]Mr. and Mrs. Emmott also drew attention to parts of the statement which set out events which occurred whilst Mr. Steel was in prison, such as violence and abuse which he suffered from other prisoners. They suggested that these events may have been exaggerated and did not correspond with their family members’ recollections of how Mr. Steel had appeared on visits. I cannot judge whether this is, or is not so, on the materials before me. However, I note from paragraph 10.21 of the psychiatric report that Mr. Steel did tell Dr. Fraser that he “got quite a few kickings”, that he feared being bullied, and that other prisoners would look for opportunities to assault him to which he thought the prison authorities turned a blind eye.[98]Mr. and Mrs. Emmott further suggested that the parts of the statement which gave an account of Mr. Steel’s disabilities, fears and limited lifestyle after his release from prison were exaggerated. The statement describes Mr. Steel as a “prisoner in [his] house”, fearful to venture out unless accompanied by Mrs. Angus. Mr. and Mrs. Emmott disputed that Mr. Steel was so reclusive and produced a letter from a neighbour who came to know Mr. Steel in Halifax after his release which suggested that Mr. Steel was more relaxed and outgoing. They also produced some of the daily notes which Mr. Steel was in the habit of faxing to his mother after he had moved to Gateshead, telling of visits which he had made to various public places.[99]For the reasons that I have already explained, I cannot assess the true position on this material. Again, however, I note that Dr. Fraser’s psychiatric report provides an independent assessment of Mr. Steel’s state of mind which does offer support for a large number of the points made in the statement. Dr. Fraser’s conclusion is striking: he concluded that Mr. Steel had shown astonishing psychological resilience given his ordeal, but that Mr. Steel was severely handicapped by a combination of mental health problems, an acute anxiety disorder and a severely impaired physical condition.[100]In response to the various points made by Mr. and Mrs. Emmott concerning the accuracy of the statement, Mrs. Angus’s evidence states, “I am quite certain from my conversations with the deceased that he was satisfied, when he completed and signed it, that the statement was a true reflection of his thoughts relating to his experiences, and that as far as he was concerned the facts stated were accurate.” As I have made clear, on the limited materials before me and without the benefit of cross-examination, I am in no position to determine whether Mrs. Angus’s view of the matter is accurate or not.[101]When, as is inevitable, the drafting of the submission is reconsidered by Stephensons and counsel, they should be provided with copies of the materials which have been before me. They will have to undertake a critical assessment and form a view as to the reliability of the statement and reconsider the extent to which it should be used in the submission. They might, for example, consider whether to make more use of the observations of Dr. Fraser in the psychiatric report in order to provide independent support for, or to replace, some of the points made in reliance on the statement.[102]Before turning to the application for the removal of executors, I should mention what I believe underpins a good deal of Mr. and Mrs. Emmott’s objection to the statement. The materials which I have seen, including some extracts from the reports of prison governors referred to in the psychiatric report indicate that Mr. Steel’s parents, family and friends remained steadfast in their support of him during his entire ordeal. His parents and family members visited him regularly whenever they could and welcomed him home whenever he was allowed to visit. Similarly, after Mr. Steel’s release in 1998 and during his serious illnesses, his family were undoubtedly highly supportive and caring. The support of family and friends during his imprisonment and in his long campaign to secure release and clear his name must have been an enormous comfort for Mr. Steel and perhaps contributed to the remarkable psychological resilience noted by Dr. Fraser.[103]What I believe has caused substantial hurt to Mr. and Mrs. Emmott and Mr. Steel’s other relatives is that the statement makes very little mention of this unwavering support from his family or of their part in his ordeal. Sarah Dundon and her children are not mentioned at all. Mr. Steel’s sons, Mark and Jason, are mentioned briefly in passing, and not by name. The statement does refer in fond terms to Mr. Steel’s daughter Julia, and mentions briefly the loyalty and role of friends who campaigned for him. But much greater detail is given of his relations with Mrs. Angus during the period when Mr. Steel was in Frankland prison and of her place in his life after his conviction was quashed.[104]The absence of such matters from the statement was picked up by Mr. and Mrs. Emmott in their letter to Mrs. Angus of 4 February 2009 to which I have referred. It is also the subject of a letter from Mr. Mark Steel dated 13 July 2009 which was produced to the Court and which clearly identified the upset that these omissions have caused to members of Mr. Steel’s family. Mr. Mark Steel’s letter also candidly acknowledges the distress that the family members suffered as a result of the dispute with Mrs. Angus over where Mr. Steel should be buried.[105]I entirely understand that the members of Mr. Steel’s family feel aggrieved at what they see as a very partial account of Mr. Steel’s long ordeal. But I think that, objectively speaking, the defect in the statement is, to use Mr. Allston’s words, “a sin of omission”. It may well be a reflection of the fact that, as we now know, Mr. Steel prepared his statement with assistance from Mrs. Angus with whom he was then living. But I do not think that the matters which seem to have been omitted are material for the purposes of the compensation claim. And even if I were, for the sake of argument, to make the assumption that their omission was the result of influence by Mrs. Angus or Mr. Hill, I cannot detect any sinister purpose behind their omission so far as the compensation claim is concerned.

The application for the replacement of Mr. and Mrs. Emmott as executors

[106]I therefore turn to Mrs. Angus’s application that Mr. and Mrs. Emmott should be replaced as executors pursuant to section 50 of the Administration of Justice Act 1985. That section provides, in material part, that on an application by or on behalf of a personal representative of a deceased person or a beneficiary of the estate, the Court may in its discretion appoint a person to act as personal representative of the deceased in place of the existing personal representative or representatives or any of them.[107]Authority on the exercise of discretion under section 50 is sparse, but in the recent case of The Thomas and Agnes Carvel Foundation v. Carvel [2007] EWHC 1314 (Ch) Lewison J. considered an application for replacement of a trustee and sole personal representative pursuant to this section or section 1 of the Judicial Trustees Act 1896. Lewison J. commented, at paras [44] – [46], “[44] It is common ground that, in the case of removal of a trustee, the court should act on the principles laid down by Lord Blackburn in Letterstedt v Broers (1884) 9 App Cas 371, and that in the case of removing a personal representative similar principles should apply…. At page 386 Lord Blackburn referred with evident approval to a passage in Story's Equity Jurisprudence:
"But in cases of positive misconduct, Courts of Equity have no difficulty in interposing to remove trustees who have abused their trust; it is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce Courts of Equity to adopt such a course. But the acts or omissions must be such as to endanger the trust property or to shew a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity." [45] He continued: "
It seems to their Lordships that the jurisdiction which a Court of Equity has no difficulty in exercising under the circumstances indicated by Story is merely ancillary to its principal duty, to see that the trusts are properly executed. This duty is constantly being performed by the substitution of new trustees in the place of original trustees for a variety of reasons in non-contentious cases. And therefore, though it should appear that the charges of misconduct were either not made out, or were greatly exaggerated, so that the trustee was justified in resisting them, and the Court might consider that in awarding costs, yet if satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate." [46] The overriding consideration is, therefore, whether the trusts are being properly executed; or, as he put it in a later passage, the main guide must be "the welfare of the beneficiaries".” "But in cases of positive misconduct, Courts of Equity have no difficulty in interposing to remove trustees who have abused their trust; it is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce Courts of Equity to adopt such a course. But the acts or omissions must be such as to endanger the trust property or to shew a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity." "It seems to their Lordships that the jurisdiction which a Court of Equity has no difficulty in exercising under the circumstances indicated by Story is merely ancillary to its principal duty, to see that the trusts are properly executed. This duty is constantly being performed by the substitution of new trustees in the place of original trustees for a variety of reasons in non-contentious cases. And therefore, though it should appear that the charges of misconduct were either not made out, or were greatly exaggerated, so that the trustee was justified in resisting them, and the Court might consider that in awarding costs, yet if satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate."[108]I take from this passage that the Court’s power to remove and replace a personal representative is in no way limited to cases of misconduct. That is also the view taken by the editors of Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (19th ed) who refer to the power under section 50 of the 1985 Act at paragraph 60-14 and comment, “…if the administration has come to a standstill because relations between the personal representatives have broken down, or relations between the representatives and the beneficiaries have broken down, the court will ordinarily remove the personal representatives and appoint new ones to enable the administration to be completed. It is not necessary to establish wrongdoing or fault by the personal representative to obtain his removal. If, for whatever reason, (such as clash of personalities, or the lack of confidence in the personal representative by the beneficiaries, even if unjustified) it has become impossible or difficult for the administration to be completed by an existing personal representative, then an order for his removal will usually be made.”[109]To similar effect in the case of trustees is a statement in paragraph 73.47 of Underhill and Hayton, The Law of Trusts and Trustees (17th ed) which gives, as an example of the application of these principles, the Canadian case of Re Consiglio Trusts (1973) 36 DLR (3d) 658. In that case, the Ontario Court of Appeal affirmed a decision removing three trustees (one at his own request) and appointing a trust corporation as trustee in their place. The evidence was that there had been widespread misunderstandings among the trustees from the start that had resulted in accusations and bitterness, so that it was virtually impossible for them to agree on the efficient management of the trust. The application was opposed on the basis that no misconduct had been shown on the part of any of the trustees, but Kelly JA, giving the judgment of the Court said, at page 660, “It is our view that misconduct on the part of a trustee is not a necessary requirement for the Court to act and that the Court is justified in interfering, and indeed required to interfere, when the continued administration of the trust with due regard to the interests of the cestui que trust has by virtue of the situation arising between the trustees has become impossible or improbable.”[110]Applying these principles to the instant case, I do not find that there has been any misconduct on the part of Mr. and Mrs. Emmott. As I have indicated, I consider that some of the points raised by them concerning the submission were well founded and that it would have been inappropriate to send the submission to the Home Secretary in the form of the current draft as proposed by Mrs. Angus.[111]Whilst there is undoubted force in the observation made by Mr. Allston that Mr. and Mrs. Emmott did not avail themselves of the opportunities that they were given to raise their specific points concerning the submission with Stephensons before proceedings were issued, I think that they were presented with a very difficult situation. I have indicated that I take the view that Mr. and Mrs. Emmott’s suspicions were justifiably aroused by the form of the statement and compounded by Mr. Hill’s and Mrs. Angus’s comments and silence as to their involvement in its preparation.[112]Having seen Mr. and Mrs. Emmott in person I would characterise their failure to respond to Stephensons with sufficient particularity as misguided rather than wrongful. I also think that Mrs. Angus should have been more forthcoming at an early stage in relation to the way in which the statement had been prepared. And I consider that the intervention and correspondence from Mr. Hill was unhelpful.[113]That said, I accept Mr. Allston’s submission that, even without misconduct, a situation has been reached in which there is such a degree of animosity and distrust between the executors that the due administration of Mr. Steel’s estate is unlikely to be achieved expeditiously in the interests of the beneficiaries unless some change is made.[114]The very fact that since Mr. Steel died in 2007, his executors have been engaged in hostile litigation with each other twice in as many years is telling. It is also a matter of considerable concern that we are now over six and a half years since Mr. Steel’s conviction was quashed and over two years since he died, and yet the claim for the substantial compensation to which his estate is undoubtedly entitled has still to be filed. The point is also rightly made that Mr. Steel’s mother is elderly and that she ought to benefit from the share of compensation which her son wished her to have without further delay.[115]In these circumstances I do not think that there is the luxury of permitting the current executors to continue in office in the hope that, as a result of this judgment or otherwise, they will be able to put the unfortunate history of this case behind them and proceed without further dissension or delay to approve the submission.[116]I have anxiously considered whether the appropriate course to take is simply to replace Mr. and Mrs. Emmott, leaving Mrs. Angus and a substituted personal representative to administer the estate. The continued involvement of Mrs. Angus as executor would have some logic. Given the likely level of compensation, the probability is that, even taking into account Raybrook’s claim to 10%, all of the specific pecuniary legacies will be paid in full and any variation in the level of compensation that might require the exercise of any discretionary decisions will only affect the amount payable to Mrs. Angus as residuary legatee.[117]However, a number of factors have persuaded me that that is not the appropriate course to take. I have in mind my finding that Mr. and Mrs. Emmott were justified in their opposition to the draft submission being filed in its current form. I do not wish to make any order that might be taken to suggest otherwise. I also bear in mind that at least in number, most of the beneficiaries of Mr. Steel’s estate are distrustful of Mrs. Angus. And finally, and perhaps most importantly, as I have indicated, the process of reworking the submission will require a dispassionate judgment, not just by the lawyers, but also by the executors, as to the reliability and utility of the statement and the effect (if any) of Mrs. Angus’s and Mr. Hill’s involvement in its preparation. Self-evidently, Mrs. Angus is not best placed to conduct that task herself.[118]In these circumstances, I have come to the conclusion that the safest and most appropriate course to ensure the proper administration of the estate in the interests of all beneficiaries is to remove all the current executors and to replace them with a suitably qualified professional who can take an independent view of the few matters that remain to be carried out.[119]This option was in fact suggested to me, without prompting, by Mr. Allston during the course of his submissions as an alternative to the principal relief which he sought in the application. He volunteered that Mrs. Angus would not oppose her own removal if I thought it appropriate to take that course.[120]As to the identity of the substituted personal representative, the only remaining matters in the administration of the estate are essentially legal matters. The finalisation, submission and prosecution of the compensation claim is eminently a matter which can be supervised by a lawyer together with Stephensons and counsel already instructed. The same is also the case with what remains of the Inheritance Act claim. As such, I believe that the welfare of the beneficiaries can properly be safeguarded if I appoint a suitable solicitor to act as substituted personal representative. The appointment of a single individual as sole executor is open to me if I consider it to be expedient by virtue of the provisions of section 114(2) of the Supreme Court Act 1981. I am of that view.[121]Mr. Allston submits that, although a partner in the firm of solicitors acting for Mrs. Angus in this case, Gina Fairfax would still be a suitable person to be appointed as sole personal representative. The evidence makes plain that Mrs. Fairfax is a highly experienced solicitor experienced in probate matters and Mr. Allston assured me that she has had no prior dealings with Mrs. Angus. The firm of Bishop & Sewell LLP does not act for Mrs. Angus in any matter apart from the present application and the Inheritance Act claim. Mrs. Fairfax is not the partner responsible for either of those matters.[122]When this possibility was raised in argument I asked Mr. and Mrs. Emmott to consider whether, as beneficiaries, they had any objections to this course. They told me that although they might have preferred a partner at Stephensons (other than Mr. Treanor) with whom they had had previous dealings, they had no objection to Mrs. Fairfax personally.[123]I have no information as to whether the other partner from Stephensons would be prepared to act, and I can in any event see some merit in not having both the personal representative and the lawyer acting on the compensation claim from the same law firm.[124]I will require Mrs. Fairfax to confirm that she is still willing to be appointed to act in light of the matters which I have set out in this judgment, and that she sees no difficulty in implementing arrangements to maintain appropriate independence from Mrs. Angus and any other lawyers in her firm who might be continuing to advise Mrs. Angus. Mrs Fairfax will of course be entitled to be remunerated for her services.[125]If those confirmations are forthcoming, then, as Mrs. Fairfax has been duly certified as fit to act, I intend to appoint her to act as the substituted personal representative of Mr. Steel under section 50(1) of the 1985 Act.[126]I request that Mr. Allston draw up a draft minute of order and I shall hear any arguments on costs when I hand down this judgment.

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