Mobolaji Olunbunmi Agoro v Oluwatoyin Adigun-Harris [2026] EWHC 1544 (Ch)

[2026] EWHC 1544 (Ch)Case No PT-2025-001245IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTS OF ENGLAND & WALESPROPERTY, TRUSTS AND PROBATE (ChD)Venue Royal Courts of Justice, 7 Rolls BuildingsLondon EC4A 1NLDate of hearing: 30 April 2026Date of judgment: 24 June 2026
Before
DEPUTY MASTER SCHER
Between
MOBOLAJI OLUNBUNMI AGOROClaimantsOLUFUNMILAYO ADEWUNMI ONIClaimantADEKOYEJO SOREMEKUNClaimantOBAJIMI SOREMEKUNClaimantOLUWATOYIN ADIGUN-HARRISDefendant
Fiona Todd (instructed by Holloway & Rose Solicitors) for ClaimantsGavin McLeod (instructed by Norris and Miles Solicitors) for Defendant
JUDGMENT
This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.DEPUTY MASTER SCHER:IntroductionDate 2026-06-24
[1]This is my reserved judgment on the Defendant’s application dated 17 February 2026 (the Application), heard on 30 April 2026.[2]The claim concerns a Tomlin order entered into by Esther Ayinke Soremekun (the Deceased) on 2 February 2005. The Claimants in their claim primarily ask the Court to set that Tomlin order aside on the basis of alleged deceit. The Defendant’s Application is for summary judgment on, or to strike out, this part of the Claimants’ claim. The Claimants alternatively seek relief in respect of (inter alia) alleged breaches of the Tomlin Order.

Background

[3]Mr Afolabi Soremekun died in 1984. His estate included two relevant English properties: 27 Aldershot Road, Kilburn, London NW6 7LF, and 54 Riffel Road, Willesden, London NW2 4PH. It also included properties in Lagos, Nigeria, in particular 16 Ogunlesi Street, Palm Grove Estate, Lagos and 10 Atere Street, Lafiaji, Lagos.[4]The Deceased was Mr Afolabi Soremekun’s wife. The Defendant is the daughter of the Deceased.[5]The Claimants are Mr Afolabi Soremekun’s children by other relationships.[6]There was a dispute between the Deceased and the Claimants concerning Mr Afolabi Soremekun’s estate. Relevantly, the Deceased asserted an equitable interest in 27 Aldershot Road and 54 Riffel Road.[7]The dispute was settled by a Tomlin Order made by Master Moncaster, dated 2 February 2005.[8]The parties agreed in the Schedule to that Tomlin Order (the Settlement Agreement) that (inter alia):a. 27 Aldershot Road would belong to the Deceased, subject to a charge over 30% of the eventual net sale proceeds of the property in favour of the Claimants;b. 54 Riffel Road would belong to the First to Third Claimants;c. 16 Ogunlesi Street would be shared: 60% for the Deceased and 40% for the Claimants, subject to the Deceased having the benefit of income from the property during her lifetime, and the Claimants agreeing to cooperate in any sale.d. The Claimants renounced any interest in 10 Atere Street.[9]In performance of the Settlement Agreement, 27 Aldershot Road was transferred to the Deceased, and the Deceased executed a charge in the Claimants’ favour. The Claimants’ charge was registered, and further protected by way of a restriction.[10]The Claimants allege that the Deceased breached the Settlement Agreement in various respects:a. She did not transfer 54 Riffel Road to the Claimants, but only did so when compelled to by Court order dated 20 August 2013, which the Deceased did not oppose;b. She sold 16 Ogunlesi Street without the Claimants’ consent and without paying them;c. In about 2007, the Deceased sought to have 27 Aldershot Road transferred into the joint names of herself and her daughter Oluwatoyin Adigun-Harris (the Defendant). To do this, because of the restriction mentioned above, she required the Claimants’ consent. The Claimants allege that their signatures on the consent form were forged. The Defendant denies this. The Claimants have since successfully applied to HM Land Registry to have the transfer into joint names cancelled, relying on an expert’s report of Margaret Webb dated 21 June 2023 as evidence of forgery.[11]The Deceased died on 29 August 2022. As noted above, the Defendant (her daughter) is her executor.[12]The Claimants issued the present claim on 19 December 2025. The Claimants claim that they were fraudulently induced to enter into the Tomlin Order. They seek rescission of the Settlement Agreement, or damages. Alternatively, the Claimants seek damages for breach of contract or equitable compensation for breach of trust in respect of the transfer of 16 Ogunlesi Street.[13]The Defendant has not yet filed a defence, but issued the present application on 17 February 2026.

Strike out and summary judgment - principles

[14]CPR rule 3.4 provides, so far as relevant: 3.4. Power to strike out a statement of case(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.(2) The court may strike out a statement of case if it appears to the court – (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; (c) that there has been a failure to comply with a rule, practice direction or court order;[15]CPR rule 24.3 provides: 24.3. Grounds for summary judgment The court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if—(a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and(b) there is no other compelling reason why the case or issue should be disposed of at a trial.[16]The following principles derived from the authorities were formulated by Lewison J in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15] and approved by the Court of Appeal in AC Ward & Sons Ltd v Catlin (Five) Ltd [2009] EWCA Civ 1098; [2010] Lloyd's Rep. I.R. 301 at [24]: i) The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman [2001] 1 All E.R. 91 ; ii) A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8]; iii) In reaching its conclusion the court must not conduct a "mini-trial": Swain v Hillman; iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]; v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No.5) [2001] EWCA Civ 550; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] F.S.R. 3; vii) On the other hand it is not uncommon for an application under Pt 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725.[17]In cases such as the present, where fraud is alleged, summary judgment is in principle still available, but caution must be exercised. Miss Todd referred me to the judgment of Cockerill J in King v Steifel [2021] EWHC 1045 (Comm):23. I should deal specifically with the law on summary judgment and claims in fraud, not least because it was at least implicit in the submissions for the Kings that such serious allegations were not suitable for summary determination.24. The reality is that while the court will be very cautious about granting summary judgment in fraud cases, it will do so in suitable circumstances, and there are numerous cases of the court doing so. This is particularly the case where there is a point of law; but summary judgment may be granted in a fraud case even on the facts. I have done so in a case heard very close in time to this application: Foglia v The Family Officer and others [2021] EWHC 650 (Comm) , where at [14] I gave some examples of other cases in which this course was also followed. In other cases, such as AAI Consulting Ltd v FCA [2016] EWHC 2812 (Comm) and Cunningham v Ellis [2018] EWHC 3188 (Comm) fraud claims were struck out on the basis that the particulars of claim were inadequate in themselves to support the claims being made.25. In terms of the approach to summary judgment in fraud claims Primekings commended to my attention the judgment of Stuart Smith J in Portland Stone Firms Ltd v Barclays Bank plc [2018] EWHC 2341 (QB) at [25] – [29] , in the context of the approach to be taken when faced with an application to strike out a claim in fraud. In summary: i) The Court should bear in mind that cogent evidence is required to justify a finding of fraud or other discreditable conduct, reflecting the court's conventional perception that it is generally not likely that people will engage in such conduct. ii) Pleadings of fraud should be subjected to close scrutiny and it is not possible to infer dishonesty from facts that are equally consistent with honesty. iii) However, in view of the common feature of fraud claims that the Defendant will, if the underlying allegation is true, have tried to shroud his conduct in secrecy, the Court should adopt a "generous" approach to pleadings.26. There is one potential distinction between the position in relation to an application for summary judgment under CPR r. 24.2 and an application to strike out under CPR r. 3.4(2)(a) . As just noted, under CPR 24 evidence is admissible to show that the pleaded allegations are fanciful – albeit that the court will be very cautious about rejecting a claimant's factual case at the summary judgment stage.27. When considering an application to strike out however the facts pleaded must be assumed to be true and evidence regarding the claims advanced in the statement of case is inadmissible. This is noted in Terry Allsop v Banner Jones Limited [2021] EWCA Civ 7 by Marcus Smith J (giving the judgment of the Court of Appeal) at [7], citing the judgment of Arnold LJ in Libyan Investment Authority v King [2020] EWCA Civ 1690, at [96] :
"In contrast with the applications under CPR 3.4(2)(b) , the applications under CPR 3.4(2)(a) and CPR 24.2 are concerned with the merits of the claim, specifically whether the claim meets the (low) threshold of what I shall call "reasonable arguability"
. Although it can be said that there is no material difference between the test applied by these two provisions, there is an important distinction between CPR 3.4(2)(a) and CPR 24.2 , in that an application under CPR 24.2 can be supported by evidence, whereas an application under CPR 3.4(2)(a) should not involve evidence regarding the claims advanced in the statement of case."

The Application, and the Claimants’ concessions

[18]Mr McLeod for the Defendant described the Application as being broken down into the following categories:(i) The claimed misrepresentations by way of dishonest promises of future action (‘the Promises Representations’);(ii) The claimed dishonest representations of a state of mind, being as to the intention to comply with the Settlement Agreement (‘the State of Mind Representations’);(iii) The claimed breaches of contract concerning 16 Ogunlesi Street (‘the Breach Claims – Contract’);(iv) The claimed breaches of trust concerning 16 Ogunlesi Street (‘the Breach Claims – Trust’);(v) The expiration of the limitation period for any rescission of the Settlement Agreement in equity (‘Equitable Limitation’);(vi) Issues of affirmation, and/or unreasonable delay, concerning any rescission of the Settlement Agreement at common law or in equity (‘Bars to Rescission’);(vii) The mistaken references to a right to damages in lieu, or under the Misrepresentation Act 1967 (‘Impossible Damages Claims’); and(viii) The repeated assertions that the Claimants are presently entitled to the transfers of 27 Aldershot Road and 16 Ogunlesi Street into their own names (‘Impossible Contentions of Title’).[19]Miss Todd for the Claimants made a number of concessions in her skeleton argument, helpfully narrowing the issues. Using Mr McLeod’s numbering: (i) Miss Todd accepted that the Promises Representations cannot be relied on in founding a claim in misrepresentation or deceit. (vii) Miss Todd accepted that damages under Misrepresentation Act 1967 are not available. However, she still seeks damages for deceit. (viii) Finally, Miss Todd accepted that even if the Claimants succeed, 27 Aldershot Road should not be transferred into the Claimants’ names. If the Claimants were to succeed, that property would revert to the estate of Mr Afolabi Soremekun. There is no claim for transfer of 16 Ogunlesi Street.[20]Accordingly, certain words (agreed by the parties) in paragraphs 12(a), (b), (c), 13, and 14 of the Particulars of Claim will be struck out by consent.[21]Mr McLeod’s issues (ii), (iii), (iv), (v), and (vi) remain live.

The evidence

[22]I have read and considered the documents to which I was taken at the hearing, including in particular the Application Notice’s Continuation Sheet, the witness statements of Harvey Griffiths dated 17 February 2026 and 22 April 2026 (for the Defendant), and the witness statements of Deji Holloway dated 22 April 2026 and 27 April 2026 (for the Claimants).

Issue (ii) - The State of Mind Representations

[23]The Claimants plead that the Deceased “never intended to honour the terms of the Settlement Agreement or any settlement in whole and that her representations to the effect that she would were knowingly false”: paragraph 12(c) of the Particulars of Claim. These are the alleged “State of Mind Representations”.[24]They continue: “In reliance on those representations, which by reasons of the matters set out above were material, the Claimants were induced to enter the Settlement Agreement, compromising their rights under the Will, and consent to the 2005 [Tomlin] Order”: paragraph 12(d).[25]In paragraph 15, the Claimants plead the matters they rely on “in support of their claim for fraudulent misrepresentation as subsequent evidence of Esther's [sic] Soremekun's fraudulent intent when she made the representations procuring the Claimants' consent to the Consent[26]Mr McLeod for the Defendant argues that the Claimants face a serious obstacle in proving what the Deceased’s state of mind was at the time of the alleged representations. This goes beyond the usual difficulty in proving someone else’s state of mind, because the alleged representor has since died, and more than 20 years have passed since the alleged representations. He argued in his skeleton argument that the Claimants lack evidence to support their position, and moreover lack evidence supporting the proposition that more evidence may come forward to assist them. It is not enough to say that “something will turn up”.[27]Turning to paragraph 15 of the Particulars of Claim, Mr McLeod submitted in his skeleton argument that (inter alia) there is no evidence that the alleged failure to serve the proceedings settled by the Settlement Agreement was deliberate (15(a)). He argued that the remaining allegations from which the Claimants infer dishonesty occurred years after the Settlement Agreement, and therefore cannot logically say anything about the Deceased’s state of mind in 2005. He refers to evidence that the Deceased did in fact sign the transfer for 54 Riffel Road in 2006 or 2009 (relevant to paragraph 15(b)), and to solicitors’ letters showing that the transfer of 27 Aldershot Road was transparent (15(d) and (f)). As for the sale proceeds of 16 Ogunlesi Street, Mr McLeod says that the Claimants had no entitlement to them in any event (15(e) and (f)). Finally, Mr McLeod argued at length in his skeleton argument that the expert evidence supporting the alleged forgery of signatures (15(c)) is flawed; forgery is (he says) inherently unlikely; contemporaneous correspondence shows that the Claimants knew or should have known about the signatures (and indeed the proposed transfer) at the relevant time but did not object; and even if there was a forgery, it does not show that the Deceased never intended to be bound by the Settlement Agreement.[28]In oral argument, Mr McLeod emphasised the difficulty in showing what the Deceased’s true state of mind was. He relied on the case of GI Globinvestment Ltd. v. XY ERS UK Ltd. [2025] EWHC 740 [972]-[974] in particular, where this difficulty is described as a “serious obstacle”. Per Jacobs J at [974]:
“The mere fact that an expressed intention is not eventually carried into effect is little evidence of the original non-existence of the intention, since the representor may have subsequently changed his mind.”
Mr McLeod argued that this Court can never know from the evidence whether the Deceased had a dishonest intention at the time of the Settlement Agreement, or whether she had a subsequent change of mind.[29]Mr McLeod made further oral submissions on the alleged particulars of dishonesty. He emphasised, with regard to the alleged forgery (15(c)), that the transfer concerned only the Deceased’s 70%. It could not and would not have affected the charge securing the Claimants’ 30%. There was no prejudice to the Claimants. Accordingly, there can be no inference that the Deceased did not intend to perform the Settlement Agreement.[30]Mr McLeod further emphasised that the Deceased performed parts of the Agreement: she charged 27 Aldershot Road, and did much of what was needed to transfer 54 Riffel Road. This is inconsistent with the alleged intention never to be bound by the Settlement Agreement.[31]Miss Todd submitted that the factual matters alleged in paragraphs 15(a) to (g) imply that the Deceased had a dishonest state of mind. She argued that the Particulars of Claim require a significant factual enquiry to resolve them. The evidence relied on by the Claimants is set out in and exhibited to Deji Holloway’s witness statements.[32]In her skeleton argument, Miss Todd dealt in detail with the allegation in paragraph 15(c), namely forgery of the Claimants' signatures to the Letter of Consent dated 8th March 2007, concerning the transfer of Aldershot Street into the joint names of the Deceased and the Defendant. She referred to the expert report of Margaret Webb as supporting the allegation of forgery, and relied on the fact that HM Land Registry was sufficiently convinced of the alleged forgery that the transfer was cancelled. Miss Todd argued therefore that the Claimants have a real prospect of successfully establishing the forgery alleged in paragraph 15(c).[33]Miss Todd expanded on another example in her skeleton argument, alleged in paragraph 15(e), namely the Deceased’s dealings with and sale of 16 Ogunlesi Street without the consent of the Claimants (or indeed informing them). Miss Todd referred to clause 6 of the Settlement Agreement, which obliges the Deceased not to dispose of the property without the Claimants’ prior written consent. She says that wilful disregard of the terms of the Settlement Agreement is evidence that the Deceased never intended to be bound by it.[34]In oral submissions, Miss Todd expanded on each of the allegations in paragraph 15. Her overarching point was that the allegation in question involved substantially disputed facts, which required decision at a trial. I have considered each of the points Miss Todd made, including (for example) the Deceased’s intentional delay in giving effect to the Settlement Agreement, and what she describes as an intentional failure to serve the proceedings settled by that agreement. She concluded that the allegations, all together, show a fraudulent intention at the time of the Settlement Agreement.[35]I must consider whether the Claimants have a “realistic” as opposed to “fanciful” prospect of success. In doing so, I have in mind the guidance in the cases of Easyair Ltd v Opal Telecom Ltd and King v Steifel, extracted above.[36]In my judgment, the Claimants have no real prospect of successfully proving that the Deceased had a dishonest intention never to perform the Settlement Agreement. The various facts in paragraph 15 of the Particulars of Claim, even if made out, are simply not sufficiently probative of the Deceased’s state of mind at the time of the Settlement Agreement to have any real prospect of establishing dishonesty. The allegations in paragraph 15 are consistent with honesty at the time of the Settlement Agreement. Moreover, the Deceased did perform parts of the Settlement Agreement, which is wholly inconsistent with the alleged intention never to be bound by it. I find there is no real prospect of successfully proving dishonesty at the time of the Settlement Agreement from the allegations relied on by the Claimants for that purpose.[37]That is not to say that there is no real prospect of the facts alleged in paragraph 15 being made out. I have considered what was said by both counsel about the evidence supporting each of those allegations. In my judgment, the Claimants would have had a real prospect of making out those allegations. There is evidence that the wrong addresses may have been used by the Deceased when serving proceedings in the earlier claim; there was at least some delay in transferring Riffel Road; there is apparent (untested) expert evidence concerning alleged forgery; and there is evidence of dealings with 27 Aldershot Road and Ogunlesi Street at least arguably in breach of contract and/or trust.[38]However, even if each of those allegations were proven at trial, in my judgment there is no real prospect of them being found to imply dishonesty. When taken alongside the part performance of the Settlement Agreement by the Deceased, the alleged facts are consistent with a change of mind, and have no real prospect of implying a dishonest intention not to perform at the time of the Settlement Agreement.[39]I will therefore grant summary judgment to the Defendant in respect of what the parties have called the fraud claim.[40]For the avoidance of doubt, I would also have struck out the fraud claim on the basis that the Particulars of Claim disclose no reasonable grounds for bringing the claim. Even if all of the facts alleged in paragraph 15(a) to (g) were to be decided in the Claimants’ favour, they are consistent with honesty at the time of the Settlement Agreement. They do not give rise to the inference that the Deceased never intended to honour the terms of the Settlement Agreement, but fraudulently misrepresented that she did.

Issue (iii) - The claimed breaches of contract concerning 16 Ogunlesi Street

[41]Miss Todd noted that the Claimants have a 40% interest in 16 Ogunlesi Street, and that the Settlement Agreement obliged the Deceased to obtain their prior written consent to any disposal. The property was sold in 2009, apparently without the Claimants’ consent. This, says Miss Todd, is an obvious breach of contract. The failure to pay the Claimants their 40% of the sale proceeds is a further breach of contract.[42]Mr McLeod argued that a failure to obtain the Claimants’ consent would sound only in nominal damages. He demonstrated that the Particulars of Claim do not properly plead causation or damage arising from such a breach.[43]As to the failure to pay the Claimants 40% of the sale proceeds, Mr McLeod argues that on its true construction, the Settlement Agreement gave the Deceased a life interest, which would apply to the sale proceeds as to the property itself. He relies on a passage from Theobald on Wills (at 28-087) and the case of Rochford v Hackman (1852) 9 Hare 475 to make good that point. He argues that the Claimants have no real prospect of success on the allegation that failure to pay that 40% interest was a breach of the Settlement Agreement.[44]I have considered paragraph 3 of the Settlement Agreement closely. It provides, “The parties declare and acknowledge that 16 Ogunlesi Street… is to be transferred into and held in the name of the [sic] Esther Ayinke Soremekun as to a 60% share and as to a 40% share in the name of the [current Claimants]. During her lifetime Esther Ayinke Soremekun shall have the right to receive all or any income as may arise from the said property from time to time… The said parties with an interest in the said property shall co-operate in the sale of the said property if such shall be required by Esther Ayinke Soremekum during her lifetime”.[45]There is a lacuna here. Nothing is said about what happens to the sale proceeds if the property were to be sold during the Deceased’s lifetime. The Claimants argue that the sale proceeds would need to be shared in accordance with the shares of the property; the Defendant argues that the sale proceeds would be held on the same terms as the property.[46]I have considered whether I can finally resolve this issue today (to “grasp the nettle”, in Lewison J’s words). In my judgment, I cannot. I do not have sufficient evidence of the factual matrix, which I must consider in order to ascertain the parties’ intentions in this respect. However, the Claimants’ contention appears to have, from the wording of the contract itself against the factual background of which I am aware, at least a real prospect of success.[47]I do consider the statement of case defective, in that there is no proper pleading of causation or quantification of damage. Miss Todd asked orally for permission to amend (“finesse”, in her words). Mr McLeod did not oppose this request. I consider it in accordance with the overriding objective to grant permission to amend, rather than to strike out the claim. I will give permission to the Claimants to amend the Particulars of Claim to include all necessary elements of the breach of contract claim set out in the parties’ submissions, including why it sounds in more than nominal damages.

Issue (iv) – The claimed breaches of trust concerning 16 Ogunlesi Street

[48]The Defendant has made it clear in several places that she does not seek summary judgment on the “breach claims” insofar as they are grounded on breach of trust. I see no grounds to award summary judgment or to strike out those claims on the Court’s own initiative.

Issue (v) – Limitation

(v) – Limitation

[49]I have already found that the fraud claim has no real prospect of success. It is therefore unnecessary for me to consider the strength or weakness of a potential limitation defence to it in detail.[50]I note Miss Todd’s submission that the Claimants would rely on s32 Limitation Act 1980, to postpone the time from which the limitation period begins to run on the basis of fraud and/or deliberate concealment. She argued there was, at least, a real prospect of s32 being found to apply. There would need to be a factual investigation of when the Claimants discovered the alleged fraud, or when they could with reasonable diligence have discovered it. I was referred to paragraph 32 of Deji Holloway’s witness statement dated 22 April 2026, where it is said that the discovery of the alleged breaches of the Settlement Agreement (from which the Claimants infer fraud) happened over time, and that the Claimants acted promptly upon discovering the alleged forgery of their signatures.[51]I note also the Defendant’s evidence that one piece of the puzzle (the alleged forgery) must have been known or discoverable with reasonable diligence as early as 2008/9, when the Claimants’ solicitors apparently received a letter referring to the signed letter of consent. The Defendant says that receipt of such a letter must have put the Claimants on notice that someone had signed a letter of consent, and if it was not them, the Claimants should have deduced forgery.[52]Considering all the evidence to which I was taken, it appears to me that the Claimants would have had at least a real prospect of success on the question of whether the limitation period should be postponed. I would not therefore have granted summary judgment against the fraud claim on the basis of a limitation defence.

Issue (vi) – Bars to rescission

[53]Again, I have already found that the fraud claim has no real prospect of success. It is therefore unnecessary for me to consider affirmation and/or unreasonable delay as bars to rescission in any detail. I merely note that such bars to rescission generally require the Claimants to have been aware of their right to rescind, and that I have found above that there is a real prospect of the Claimants showing that they came to realise the facts alleged in paragraph 15 of the Particulars of Claim over time. I would not therefore have granted summary judgment against the fraud claim on this basis.

Conclusion

[54]For these reasons, the Defendant’s Application succeeds to the extent set out above. I grant summary judgment against the Claimants on the fraud claim, and give permission to the Claimants to amend the breach of contract claim, as set out above. The Application is otherwise dismissed.[55]The Defendant has sought an extension of time for filing and serving a defence to the parts of the Particulars of Claim which survive the application: applying the overriding objective, it seems clear that such an extension should be granted. The parties should agree a timetable for filing and serving the Amended Particulars of Claim and the Defence.[56]I have asked the parties to CE-File a minute of order, agreed to the extent possible, reflecting my decision and the consensual strike-out referred to above. If there is need for a consequential hearing, the parties must file their dates to avoid and an agreed time estimate.

Order

a. Esther Soremekun's failure to properly serve proceedings in the second claim.b. Esther Soremekun's failure to transfer Riffle [sic] Road until faced with proceedings to compel her to do so.c. Esther Soremekun's forgery of the Claimants' signatures to the Letter of Consent dated 8th March 2007 to the transfer of Aldershot Street.d. Esther Soremekun's transfer of and dealing with Aldershot Street without consulting the Claimants in breach of contract and/or in breach of trust.e. Esther's [sic] Soremekun's dealing with and sale of Ogunlesi Street in breach of trust and/or contract.f. Esther Soremekun's failure to inform the Claimants of her dealing with Aldershot Road and/or Ogunlesi Strett [sic].g. Esther Soremekun's failure to pay proceeds from the sale of Ogunlesi Street to the Claimants.”