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Supreme Court bars man from suing brother’s solicitors over will

24 May 2010

The Supreme Court has refused to lift the limitation period so a man can sue his brother’s solicitors in a dispute over their grandmother’s will.

Mark Roberts claimed that, under the will, his brother John had to pay all the inheritance tax due on the estate in return for the bequest of a farm in Devon.

The court heard that John, who became administrator of the will, instructed Gill & Co, based in Ilford, Essex, and Whitehead Vizard, based in Salisbury.

He paid enough IHT to obtain the grant of letters of administration, but not the remaining amount, which, the court heard, was estimated at £100,000 including interest.

John, as personal representative, transferred the farm to himself as beneficiary and sold it for £305,000, keeping £285,000 after liabilities were paid.

Giving judgment in Roberts v Gill & Co and others [2010] UKSC 22, Lord Collins said Gill & Co acted for John on the grant of administration “and (it seems) on preparation of the assent”. Whitehead Vizard acted for him on the sale of the farm.

Mark, who received legal aid, issued proceedings at Plymouth County Court in 2002 against the two firms of solicitors for breach of duty of care owed to him as beneficiary of the grandmother’ estate.

Whitehead Vizard wrote to him the following year, rejecting the claim on the grounds there was no duty of care between a solicitor instructed by a personal representative and a beneficiary.

Lord Collins said it was not until August 2006 that Mark applied to amend the proceedings, to continue them both in his personal capacity and as a derivative action on behalf of the estate.

This was more than three years since the expiry of the limitation period and nine years since the sale of the farm by his brother.

Lord Collins said the questions on appeal were whether the amendment could be made despite expiry of the limitation period and whether, even if the limitation period was not a bar, the claim was bound to fail because there were no special circumstances justifying a derivative action.

The High Court held that there were no special circumstances. The Court of Appeal ruled by a majority that there were special circumstances, but the claim was time-barred.

Lord Collins dismissed the appeal, on the ground that the Court of Appeal was right to hold that the amendment to pursue a derivative claim was not permitted after expiry of the limitation period.

He said that, had the point arisen, the judge was right to conclude that there were no special circumstances.

Lords Rodger and Walker agreed with Lord Collins that the limitation period applied, for similar reasons. However, Lords Hope and Clarke preferred not to rule on whether the amendment was time-barred, but held that no special circumstances arose.

Lord Clarke said the court would have the power to allow the amendment “if it appeared just in all the circumstances”.

Stephen Whinder, associate at Barlow Lyde & Gilbert, acted for the defendant law firms.

“Concern in the profession about the case would have been much greater if the argument had been accepted that solicitors instructed by the administrator of an estate had direct liabilities to the beneficiaries,” he said. “It is clear that the court rejected such an idea.”

He added: “It seems rather extraordinary that a relatively small value claim has made it all the way to the Supreme Court on a technical and procedural issue. It is most unlikely that this would have happened but for the availability of legal aid.”

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Trade Procedures Police & Prisons Wills, Trusts & Probate