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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Denekamp v Denekamp [2005] EWCA Civ 1477 (08 December 2005) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2005/1477.html Cite as: [2005] EWCA Civ 1477 |
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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
Peter Leaver QC sitting as a Deputy Judge of the High Court
Strand, London, WC2A 2LL |
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B e f o r e :
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DENEKAMP |
Appellant |
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and |
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DENEKAMP |
Respondent |
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Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
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Crown Copyright ©
Lord Justice Ward :
The Strike Out.
"Following my father's death on 8th January 1989, inter alia to illegally evade the inheritance tax that should have been paid by my two siblings, I was duped by the second and third defendants [his brother and solicitor] and my now deceased sister, to sign a deed of variation (DOV) dated 13th March 1989, varying the laws of intestacy in favour of the first defendant (my mother). After being appointed as an administrator of my father's estate, I was immediately sidelined and financially disadvantaged at every turn (mostly fraudulently), by the conspiracy of the second and third defendants. Whilst the third defendant was also negligent in not informing me of the "hotchpot" intestacy laws applicable in 1989 and their important significance before I signed the DOV. Therefore, I now claim that the DOV is annulled. And with regard to Clause 2 of the DOV, I can supply conclusive evidence that the properties Trenewth and Silver Birches should be considered as tenancies in common and proportionately part of my father's estate. There are no claims made against the first defendant, as it is anticipated that she should suffer no financial loss with the DOV being annulled, as all claims flowing from the annulment are made against the second and third defendant."
"It was common ground at the hearing before me that I should consider Mabel, Johan and Mr Vaughan's applications to strike out particulars of claim or for summary judgment by reference only to the proposed amended particulars of claim … It was also common ground that I should treat the proposed amended particulars of claim as a final version, and should not, in the event that I came to the conclusion that some, or all, of the proposed amendments should not be permitted, allow further time for the claim to be re-pleaded."
"The third defendant's negligence in failing to adduce section 47(1)(iii) of the Administration of Estates Act 1925 (i.e. the "hotchpot" rules) in his schedules A-G and failing to inform the claimant of this Act by other means. And the third defendant's further negligence in failing to explain to the claimant any of the intestacy laws and beneficial and tenancy in common rules, to the extent that the claimant was thereby hamstrung in these matters."
He alleges that the solicitor was negligent at the family meeting held on 11th February 1989. He asserts that if he had been properly advised he would not have signed the deed of variation. He alleges that the negligence "has been compounded since by the third defendant's lies, cheating, false accounting, attempting to use the claimant as an unwitting vehicle to facilitate his siblings inheritance tax fraud, other fraud …" He says that but for Mr Vaughan's negligence he would not have entered into the DOV and so he asks for the deed of variation to be annulled and for aggravated damages.
"Knowledge that any acts or omissions did or did not as a matter of law involve negligence is irrelevant for the purposes of subsection 5 above."
"What the plaintiff's argument boils down to is that although it knew all the material facts it did not know until later that those facts gave rise to a claim in negligence. In my judgment, however, in cases under section 14A as in personal injury cases, their ignorance that the known facts may give rise to a claim in law cannot postpone the running of time under the 1980 Act. As I read the sections and the authorities, both section 14 and section 14A are concerned exclusively with matters of fact provable by evidence, as opposed to matters of English law, in respect of which evidence is inadmissible."
"In order to mount the action she did not need to be advised that the failure to advise amounted to professional negligence. This is irrelevant for the purposes of subsection (5) and the start date for reckoning the limitation period."
" "It is clear from the words of the section itself … that it is concerned with knowledge of facts, as opposed to knowledge of matters of law. In particular, subsection (9) specifically excludes knowledge that the defendant acted negligently.""
The Civil Restraint Order.
"What is clear to me is that if anyone dies not agree with Mr Denekamp, that person is subjected to abuse and threats of litigation; threats which for these defendants have become a reality in the last few years. Now that the litigation extends not just to the family and Mr Vaughan but also to the legal advisers of the defendants, because Mr Denekamp has issued an application "to punish them", as he puts it, for contempt of court, and tendering false evidence. That application is returnable before the court on 7th December."
The Contempt Proceedings.
"The position that there has been any contempt is quite simply unmaintainable and unarguable."