Gregory & Anor v Moore & Ors [2018] EWHC 2343 (Ch)

[2018] EWHC 2343 (Ch)Case No HC-2008-000028
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
IN THE MATTER OF THE ESTATE OF BARRY
JOHN PRING DECEASED
Venue Rolls Building, Fetter Lane,Date 06/09/2018
London EC4A 1NL
Before
CHIEF MASTER MARSH
Between
(1) PHILLIP DAVID GREGORYClaimants(2) WILLIAM JOHN WILKINSClaimant(1) JULIANNA MOORE (formerly known as Ganna Ziuzina)Defendants(2) IRENE HAYMAN PRING (on her own account and as executor of the estate of Basil John Pring)Defendant(3) SHAUGHAN PRING (as executor of the estate of Basil John Pring)Defendant
John Mclinden QC (instructed by John F S Cabot) for First DefendantLeslie Blohm QC (instructed by Stephens Scown LLP) for Second and Third DefendantsHearing Hearing dates: 2 August 2018
Judgment ApprovedChief Master Marsh:
[1]This claim concerns the estate of Barry Pring who died in the Ukraine late in the evening of 16 or in the early hours of 17 February 2008. He was struck, while standing on the hard shoulder of the M06, part of the E40 autoroute, by a vehicle travelling without lights at some speed. He was crushed against the crash barrier and suffered very severe injuries. The vehicle did not stop and the identity of the driver is not known. Barry Pring had been dining with his Ukrainian wife, who is the first defendant, to celebrate their first wedding anniversary at a nearby restaurant.[2]Barry Pring died intestate and had no children. He was survived by the first defendant, his parents Basil and Irene Pring and his brother Shaughan Pring. Mr Basil Pring died in 2015 and the interests of his estate are represented by Mrs Irene Pring and Shaughan Pring, who are the second and third defendants.[3]In the first instance a grant ad collegenda bona in relation to Barry Pring’s English estate was made on 20 October 2008 to two partners in Stephens Scown LLP. Subsequently, letters of administration were granted to the claimants on 1 March 2012. The first claimant was one of the original grantees. The second claimant, who is a current partner with the firm, replaced the other original grantee following her retirement. The assets of the estate have been realised by the claimants and the claimants’ interest in these proceedings is now limited.[4]The circumstances of Barry Pring’s death have proved to be very controversial and they have been the subject of a great deal of interest by the press in this country. Barry Pring’s mother and brother firmly believe that the first defendant was implicated in his death. At an inquest held in 2017 the Coroner recorded a verdict of unlawful killing. The verdict was subsequently overturned and a fresh inquest will be heard in early 2019.[5]Section 1 of the Forfeiture Act 1982 precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing and by virtue of section 1(2) a person who has “aided abetted counselled or procured the death” is treated as having unlawfully killed the deceased person. If the second and third defendants are right, the first defendant will not be able to claim her statutory legacy and life interest under the intestacy as it relates to Barry Pring’s English estate.[6]The lengthy history of the claim which was commenced in 2008 does not need to be recited. It suffices to draw attention to the following key steps that are relevant to the current position:(1) On 1 March 2012, Deputy Master Rhys joined the second and third defendants, ordered that a grant of letters of administration be made to the claimants and further ordered that there should be no distribution of Barry Pring’s estate until either the investigation by the Ukrainian police into the death had concluded, or the conclusion of any inquest into the death by the Coroner, or further order.(2) Orders were later made requiring Stephens Scown LLP to report to the court periodically about the investigation into Barry Pring’s death. The investigation in the Ukraine has proceeded slowly and no charges have been brought.(3) In August 2017, the first defendant applied for an order that the forfeiture issue should be delayed no longer. Deputy Master Lloyd heard the application, which was heavily opposed by the second and third defendants. On 5 December 2017 the Deputy Master handed down a judgment in which he concluded that the time had come “… for the brake to come off the determination of the forfeiture issue…”. He made an order directing (in effect) the second and third defendants to serve points of claim on the issue of whether Barry Pring was unlawfully killed followed by service of points of defence by the first defendant and a reply. His order required that the claim of unlawful killing should be fully particularised.[7]Pursuant to the Deputy Master’s order, a case management hearing was held before me on 2 August 2018. In the course of the hearing, I ordered that certain parts of the points of claim should be struck out. There was insufficient time on the day to deliver judgment giving reasons for the striking out and I agreed with leading counsel who appeared for the defendants (the claimants played no part in the hearing) that I would at the earliest opportunity deliver a brief judgment to provide reasons for the striking out and reasons for granting or refusing permission to appeal.[8]Concerns about the manner in which the points of claim were drafted, and the scope of the issues they cover, were raised in the points of defence. The first defendant declined to plead to paragraphs 8(15) to (18) and 9 to 12 on the basis that there were outwith the terms of Deputy Master Lloyd’s order. In consequence of that objection, and other concerns raised by the first defendant, the second and third defendants issued an application that was listed to be heard at the CMC seeking permission, if required, to bring those parts of the claim to which objection had been taken and for permission to make a discrete amendment to amend paragraph 8(6) of the points of claim.[9]Nothing turns on the fact that points of claim and defence, rather than full statements of case, were ordered to be served by the Deputy Master. It was plainly right to require the forfeiture issue to be determined within the envelope of this claim which concerns the proper distribution of Barry Pring’s estate. Indeed, although Part 8 does not expressly permit it, as I have observed on other occasions Sparkasse Koln Bonn v Cutts [2018] EWHC 1879 (Ch) at [7] , such an approach is one that is long established for sound practical reasons.[10]On a strict reading, the provisions of Rule 16 and Practice Direction 16 do not apply to points of claim and defence that are ordered to be served in a Part 8 claim. The Part 8 regime is intended to provide a different and streamlined procedure for resolving issues. It is open to the court to convert a Part 8 claim to become a Part 7 claim but, as in this claim, it is sometime more convenient and cost effective to permit issues to go forward for trial by way of points of claim and defence. The points of claim and defence (and reply) are in essence statements of case supported with a statement of truth, albeit that the style of pleading should be more spare than the more discursive and lengthy approach to statements of case that is all too common. It seems to me that the relevant provisions of Part 16 and Practice Direction 16 apply, with the necessary changes. Whether this is by dint of construing the rule and practice direction or applying them by analogy matters not.[11]It is hardly controversial that the facts relied on in a claim should be stated clearly and concisely (rule 16.4(1)(a)). Civil cases involving an allegation of unlawful killing are very rare indeed because section 1 of the Forfeiture Act 1982 will normally be applied following a relevant conviction after a criminal trial. It is evident that an allegation of unlawful killing made in a civil claim is one of the utmost seriousness and must be set out in a clear and concise way so as to ensure that a fair trial of the issue can take place.[12]The court’s case management powers concerning statements of case are very wide. Express powers to strike out are contained in Rule 3.4(2). The court has additional powers to take steps or make orders under Rule 3.1(2)(m) “… for the purpose of managing the case and furthering the overriding objective…”. And, in any event, the court has power to control claims under the inherent powers of the court where the justice of the case requires it.[13]At the hearing before me, it appears to have been assumed that the court has power to ‘prune’ a statement of case to ensure that peripheral matters are excluded. At least, no submission to the contrary was made. It is not necessary for the court to conclude that an aspect of a statement of case is an abuse of the court’s process before such pruning may occur. Although the power may be exercised sparingly, it is for the court to decide how resources are allocated and the court is entitled to exercise its case management powers to limit the scope of a party’s pleaded case to matters that are essential to the case it wishes to put forward. The points of claim[14]Barry Pring married the first defendant on 27 January 2007 in Kiev, Ukraine. He was aged 46 and was a self-employed IT consultant. The first defendant is a Ukrainian national and was aged 28 at the date of the marriage. It is said by the second and third defendants that she had had employment as a stripper and a lap and/or pole dancer at gentlemen’s clubs in Kiev and elsewhere.[15]The case put forward by the second and third defendants is based entirely on circumstantial evidence. In broad terms the second and third defendants rely on;(1) what is said to be a purported conversation between the first defendant and a taxi firm from the restaurant where the first defendant and Barry Pring were celebrating their wedding anniversary during which she claims she was told a taxi would take 40 minutes to arrive. The conversation is said to have been a fiction;(2) the first defendant’s return to the restaurant to collect her gloves after she and Barry Pring had decided to flag down a passing car, instead of waiting for a taxi. He was left standing on the hard shoulder of the motorway;(3) that the vehicle which struck Barry Pring had been stolen, bore stolen number plates and was masquerading as a taxi, it having deposited at the scene an illuminated taxi sign that had been attached to the roof using magnets.[16]The core allegation is set out at paragraph 8 of the points of claim:
“It is the contention of Mrs Pring and Shaughan Pring … that the deceased was wilfully and deliberately killed, and that the First Defendant was complicit in the killing of the deceased, and intended that outcome. The First Defendant brought about the murder of the deceased with the assistance of a person or persons whose identity is presently unknown.”
[17]18 sub-paragraphs follow providing particulars of the case. During the hearing there was controversy about sub-paragraph (6). In the event, the second and third defendants agreed to amend it and it is unnecessary to deal with it in this judgment.[18]The passages in the points of claim that are controversial follow particulars of the events on 16 and 17 February 2008 that are set out in sub-paragraphs (1) to (13). The remaining particulars, apart from sub-paragraph (14) which deals with statements made by the first defendant in an interview with the police, describe events that are extraneous in the sense that they do not directly relate to the events on 16 and 17 February 2008. It is necessary to set them out in full. For convenience, the words that have been struck out pursuant to my order are included in italics. “(15) The first defendant stood to benefit financially from the death of the deceased by reason of the devolution of his estate as aforesaid, and further by reason of her entitlement as the widow of the deceased to a share of his Ukrainian estate, which comprised (inter alia) the apartment at 81 Artema Street, and his share in apartment 4a Geroiv Stalingradu Prospect, which had been purchased by the deceased on about 6 March 2007 and placed in the joint ownership of the deceased and the First Defendant. For the avoidance of doubt, the entire purchase monies used to buy the property was provided by the deceased. This apartment required complete refurbishment and fitting out before it could be occupied and/or let out. (16) Further, having funded the purchase of the apartment at Geroiv Stalingradu Prospect, the deceased had funded the fitting out by paying substantial sums of money to the First Defendant. The deceased had not seen the apartment since about July 2007. The First Defendant had in or about January 2008 told the deceased that the apartment was completed, and one purpose behind the visit [to the Ukraine] that the deceased made on 16th February was to see the apartment. The statement was false. In fact the apartment was substantially incomplete. Had the deceased seen the apartment he would have discovered that the First Defendant had lied to him, and had spent most of the money forwarded by the deceased on herself and for her own ends. (17) In September 2008, the First Defendant applied to the court in Kiev, claiming full ownership of the Geroiv Stalingradu Prospect apartment. She falsely informed the judge that she had bought the apartment with her own personal money and was entitled to full ownership of it. She subsequently withdrew her claim. (18) In truth, the First Defendant married the deceased for his money, took advantage of him financially when they were married, and caused his death to rid herself of him and for her own financial benefit when it was likely that the marriage would otherwise have soon come to an end. 9. Further, notwithstanding that she was not entitled to the same, the First Defendant took possession of various assets of the deceased from the deceased’s London apartment, namely: A Breitling watch; A Land Rover motor car (…); and The contents and furniture of the deceased’s apartment at Battersea Reach (…) believed to have been sold/disposed of by the First Defendant in about October 2008. She also withdrew money standing to the credit of the deceased at his bank account. 10. The First Defendant purported to act as someone dealing with the estate of the deceased. The First Defendant has therefore constituted herself a trustee of the said property by her wrongdoing and held and holds the same in favour of the trusts of the deceased estate arising aforesaid. 11. … 12. Further, the First Defendant should account to the claimants for the assets of the deceased removed by her into her possession.”[16]Prayers 3 and 4 follow from the allegation of wrongful interference with Barry Pring’s estate and seek an order for an account against the first defendant and a ‘catch all’ prayer for other relief.[17]Mr McLinden QC who appeared for the first defendant drew attention to what he says are weaknesses in the case that it put forward against his client. The second and third defendants will have to satisfy the court that Barry Pring was killed wilfully and deliberately by a person who has not been identified and that the first defendant was complicit in the killing and intended that outcome. No case is put forward based upon:(1) an admission by the first defendant of a conspiracy with another, or others;(2) the co-conspirator(s) being identified or identifiable;(3) an admission by a co-conspirator that implicates the first defendant;(4) communications between the first defendant and another or others either prior to or after the event that might implicate her;(5) the vehicle that struck Barry Pring having been located.[18]Furthermore, the Ukrainian police, despite a lengthy investigation have never charged anyone let alone obtained a conviction.[19]However, there is no reason in principle why the second and third defendants may not be able to establish unlawful killing relying on circumstantial evidence and there is no application to strike out the claim as a whole. If anything, the manner in which the claim is pursued militates in favour of the second and third defendants being permitted to rely on a broad range of factors. The court should be cautious in such circumstances to prune their case.[20]It need hardly be said that there is depth of feeling on both sides of this very unusual claim. Barry Pring’s family have pursued a campaign about his death over a number of years that has involved their local Member of Parliament, extensive and sometime lurid reporting in the local and national press and the Foreign Office. Full details are set out in the witness statement of the first defendant’s solicitor, Mr John Cabot, dated 31 August 2017. It is unnecessary to summarise them in this judgment.[21]The court has given directions for a trial listed on a category A basis with a time estimate of 10 days. The trial window has been set for the period between 1 October and 30 November 2019 which should provide a comfortable margin between the conclusion of the inquest and the trial to enable evidence that emerges at the inquest to be used, directly or indirectly, at the trial. Paragraph 8(17)[22]This paragraph relates to events that are said to have taken place in September 2008, some 6 months after Barry Pring’s death and concern proceedings taken by the first defendant relating to the Geroiv Stalingradu Prospect apartment. It is said false statements were made by her to a court in Kiev about her entitlement to the apartment and her financial contribution to its purchase.[23]The first defendant’s state of mind is important to the second and third defendants’ case. They have to show both that she was complicit in Barry Pring being intentionally killed and she intended that outcome.[24]Paragraph 8(17) has to be seen in its place within the scheme of the pleaded case. It forms part of the case that seeks to explain the first defendant’s state of mind and her propensity to conspire to murder her husband. It follows the longer section of the case that deals with the immediately proximate events surrounding Barry Pring’s death. At paragraph 8(15) the second and third defendants plead that the first defendant stood to gain from his death and they provide particulars of that assertion. At paragraph 8(16) they plead that she misused money that was intended for refurbishment of the Geroiv Stalingradu Prospect apartment and, importantly, that had Barry Pring inspected the apartment in February 2008, as he intended to do, he would have found out that the first defendant had behaved dishonestly. It is easy to see that both averments are directly relevant to the case that Barry Pring was unlawfully killed.[25]Paragraph 8(15) is general in nature but will not involve extensive disclosure or factual enquiry at the trial. Indeed, it should be largely uncontentious. Paragraph 8(16) is also unlikely to involve wide disclosure or factual enquiry save in relation to what the first defendant may have told Barry Pring in January 2008 about completion of the works to the apartment. In any event, the averment in paragraph 8(16) is of such importance that if a detailed enquiry is needed it is fully warranted.[26]Paragraph 9 of the points of claim deals with the actions of the first defendant in relation to the chattels at Barry Pring’s apartment in London. They do not form part of the second and third defendants’ particulars of unlawful killing but they are proximate to his death and could be said to support the case that the first defendant married Barry Pring for his money. They are in any event discreet and simple to deal with in the preparation for and at the trial if they are disputed.[27]Paragraph 8(17) by contrast refers to events that took place 6 months after Barry Pring’s death. The events relied on are, at best, peripheral to the case. They may show, if they were to be established, the first defendant in a bad light but that is some distance from supporting an intention to have Barry Pring unlawfully killed. More importantly, they involve judicial proceedings before a court in Kiev. All documents relating to the proceedings in Ukranian and both sides would need to assistance of Ukranian lawyers to understand them. The claim file would need to be translated.[28]Furthermore, it is already part of the second and third defendant’s case that Barry Pring funded the purchase and refurbishment of the Geroiv Stalingradu apartment (see sub-paragraphs 8(15) and (16)). The issue that is of concern relates to the later proceedings and what may or may not, have been said to the court in Kiev.[29]It seems to me that it is right for the court to consider limiting the scope of the factual enquiry in this claim. If a party’s state of mind is at the forefront of the case, it may not always be clear where the line has to be drawn between averments that are relevant and of substance and those which are better characterised as ‘mud-slinging’. It appears to me that paragraph 8(17) falls on the wrong side of the line and in reaching that conclusion I have in mind its peripheral nature and issues of proportionality.(1) Its peripheral nature can be seen from the lack of proximity with the events of February 2008 and the limited relevance of showing that 6 months after his death, the first defendant was trying to get hold of assets by making a false statement.(2) Matters of proportionality include the likely additional cost of permitting the factual issues to be investigated by disclosure, additional witness statements and time at the trial. In addition to the cost of involving Ukrainian lawyers and translating the case file, there is a real likelihood that additional witness evidence will be needed to deal with this discreet issue.[30]When weighed in the balance, I consider in the circumstances of this case, the second and third defendants should not be permitted to pursue this element of their claim.[31]I would add that second sentence of paragraph 8(17), which is the critical part of it, is poorly particularised. It is said the first defendant “falsely informed the judge …” but it is not said when and how this was done. Although the lack of particulars is a matter which could be cured by a request under Part 18, or by an order made by the court, the better course of action is to strike it out for the reasons I have given. Paragraph 8(18)[32]The strike out involves excising the assertion that the first defendant “… took advantage of [Barry Pring] financially when they were married …”. The second and third defendants are left with their case set out in sub-paragraph 8(18) that:(1) the first defendant married Barry Pring for his money; and(2) she caused his death to be rid of him for her financial benefit when it was likely the marriage would have otherwise soon come to an end. Thus, the second and third defendants’ principal case concerning the first defendant’s state of mind and motivation remains.[33]The words that have been struck out are, to my mind, in a completely different category to those that remain. There are two principal objections to them:(1) The assertion suffers both from being emotive and lacking in clarity. It is also wholly unparticularised. It is implicit, but not stated, that Barry Pring was manipulated by the first defendant into making financial provision beyond that he might otherwise have given. If that is what is intended, it has not been stated with any clarity and, in any event, does not take the case on unlawful killing any further. An emotive assertion of such a generalised nature is likely is generate more heat than light.(2) The assertion would have required a full investigation into the finances of both parties at the date of the marriage and their marital finances for the, albeit short, period of their marriage. Such an enquiry would have involved extensive disclosure, witness evidence and time at the trial at substantial additional cost. In my judgment that inquiry would have been very unlikely to further the case to any material degree. Paragraphs 10 and 12 (and prayers(3) and (4))[34]Deputy Master Lloyd’s order dated 5 December 2017 gave directions to enable the forfeiture issue to be tried. It did not deal with wider issues concerning the estate. This is clear from paragraph 4 of the order. Permission is needed to add any claim that is outside the scope of the forfeiture issue.[35]The second and third defendants are beneficiaries of Barry Pring’s estate but otherwise have no status in relation to it. The claimants are administrators of the estate. The second and third defendants seek an order for an account in relation to the first defendant’s dealings with the assets of the estate that are referred to in paragraph 8 of the points of claim.[36]I do not consider that permission should be granted to bring the claim for an account because:(1) It does not follow from or directly relate to the forfeiture claim.(2) It is preferable that the scope of the forfeiture hearing is limited to the issue directly in point.(3) The issue is one for the administrators, not the second and third defendants.[37]In reaching this conclusion I am conscious that, with the benefit of hindsight, it is anomalous that paragraph 9 of the points of claim has not been struck out. The best that can be said is that the paragraph deals with events that are immediately proximate to Barry Pring’s death and could be relevant to the first defendant’s state of mind. Permission to appeal[38]The decisions taken concerning the points of claim do not in my judgment give rise to any point of principle. The second and third defendant’s case is left substantially unaffected. The decision to strike out small portions of the case was one that is amply justified in the exercise of the court’s case management powers and the application of the overriding objective. I do not consider that an appeal has a real prospect of success and there is no other compelling reason, even in the circumstances of this unusual case, that warrants the grant of permission.