Summary

Summary judgment was not ordered against a defendant as, on the facts, it would have been wrong to say that there was no real prospect of establishing that she was an innocent recipient of money. However a sale of property was ordered along with an enquiry as to where that money should be paid, as the property had clearly been bought with money from the deceased's estate.

Facts

Claimant's application for, inter alia, summary judgment under CPR Part 24 against the third defendant ('Mr Sumner'), the fourth defendant ('Mrs Sumner') and the seventh defendant (a company owned by Mr and Mrs Sumner). The claimant was the public trustee in its capacity as the executor of the estate of Priscilla Gordon who died on 28 September 1999, aged 92. The claim concerned three sums of money, said to belong to the estate of the deceased. The claimant alleged that the defendants took the money by, inter alia, fraudulent means. Mr Sumner and the company were not represented and did not contest the claim, although neither did they consent to it. Mrs Sumner contested the claim against her concerning a sum of £74,000 given to her by her husband, and the sale of the property in which she lived that was said to have been bought with money from the estate. The claimant contended that that money was clearly the claimant's money and that Mrs Sumner was obliged to repay it or its equivalent, either because she had received the money knowing of its origin or ought to have been put on notice, or if an innocent recipient, she had to repay as she was not a bona fide purchaser for value. Mrs Sumner contended, inter alia, that it was not clear that the money was that of the estates or, if she was an innocent recipient, she had no obligation to repay the sums or sell her property at this stage of the proceedings

Held

(1) On all the evidence there was no real prospect of Mrs Sumner establishing that the money did not belong to the claimant. On Mrs Sumner's own evidence, it was at its best unclear and at its worst confusing, as to what she thought the origin of the money was. As this was an application for summary judgment the judge was careful not to "shut out" anything where there was not clear evidence of outrageous behaviour as there had been with the other defendants. Accordingly, on the facts, it would have been wrong to say there was no real prospect of Mrs Sumner establishing that she was an innocent recipient. Although she would have a difficult time explaining her mental processes, she could be cross examined on this at trial.

(2) Accordingly the judge had to decide whether she had to repay the sum notwithstanding that she was an innocent recipient. Lipkin Gorman v Karpnale Ltd (1991) 2 AC 548 considered and applied. The judge was not persuaded by Mrs Sumner's arguments that that case concerned commercial matters and this was a husband and wife scenario which should thus be dealt with differently. On the facts of the present case the judge could not conclude that she had no real prospect of establishing a defence to the return of the £74,000, and would not award summary judgment against her.

(3) On the evidence, the property had clearly been bought with money from the estate of Priscilla Gordon; on any view the claimant had an interest in the property. Thus the judge ordered the sale of the property and an enquiry as to where that money should be paid.

Summary judgment against Mrs Sumner, regarding £74,000, refused; sale of the property ordered. Summary judgment against Mr Sumner and the company ordered.

Mr Stamford QC and Andrew

Ayres for the claimant. Miss S Hargreaves for the fourth defendant.

The third and seventh defendants did not appear and were not represented.