Will: Bid for rectification
The High Court has consolidated a negligence claim against a will-writing company with a dispute over the will it drafted, and ordered the company to engage in mediation.
His Honour Judge Paul Matthews, sitting as a High Court judge in Bristol, said “this tripartite litigation cries out for mediation”.
He continued: “There is no new law involved, and the essential disputes of fact are both clear and not numerous. The important documents have already been disclosed. The value of the claims will quickly be exceeded by the costs of a trial.
“The best chance of resolving the matter will come earlier, when fewer costs have been incurred, compared to later. The risks for each party of going on with the litigation will be an important consideration at the mediation.”
The claim before the judge concerned two wills for David Ivey in 1994 and 2009 – the latter, and possibly the former, were prepared by Trust Inheritance (TI). The claim is to revoke letters of administration for the 2009 will or alternatively to rectify one or other of the wills.
The claimants – the deceased’s three nephews and his niece – have issued but not served a separate negligence claim against TI alleging that it failed to make wills reflecting Mr Ivey’s instructions, causing them loss and damage.
The claimants sought an order that TI be joined as a costs-only party to the will rectification claim or that the two proceedings should be consolidated; the company said it was content to consolidate the cases.
HHJ Matthews held that consolidation would also achieve the claimants’ goal: that the court would have jurisdiction to order TI to take part in a mediation fixed for 17 October.
TI said it was not opposed to mediation in principle, provided it had enough time to investigate the position beforehand – the claimants said it was “an old claim”, and that TI has had plenty of time to consider its position.
“In my judgment, however, I consider that it is one thing to have a general idea of a negligence claim against you, and yet another to have the details,” said HHJ Matthews.
“The particulars of breach of duty, the question of causation of loss, and the details of the loss alleged are all important here, and certainly the second and third of these are matters within the knowledge of the claimants rather than that of the respondent.
“I do not think it is unreasonable for a person being invited to take part in a mediation on the basis that it will be invited to contribute substantively to a resolution to know, sufficiently in advance, exactly what is alleged against it, as well as what loss is said to flow from the conduct alleged.”
The judge told the parties his decision on 9 September and ordered the claimants to file and serve particulars of claim in the negligence proceedings by 17 September, and that TI attend the mediation a month later.
The short period of time to serve the particulars was “feasible” in the circumstances and a month “sufficient time” to prepare for the mediation.
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