#13542 - Summary Judgment Script - BPC Civil Advocacy

CIVIL ADVOCACY

Script

Madam,

As you will see from paragraph 1 of my skeleton argument, the application we seek to make today is one for summary judgment, pursuant to CPR 24.2

The relevant facts for this application are laid out in paragraphs 2-6 of my skeleton argument.

Madam, would you like a summary of the facts?

Facts:

The Applicant, Mr Thomas Jarndyce was appointed as executor under the final Will of Mr Peter Davidson. The final Will states that he leaves the bulk of his estate to the Marie Curie Cancer Care Trust, a registered charity and nothing to the Respondent, Mrs Emmerson.

At the time of the deceased’s death, his estate included a man’s platinum dress ring containing one large and 5 small sapphires, a man’s gold signet ring with a black onyx inset and a lady’s white gold ring set with a large solitaire diamond.

The estate also included cash to the sum of 805.73

After Mr Davidson’s death, the Respondent entered the hospital and took possession of the 3 rings and the cash. She was allowed in his room as she falsely said she was Mr Davidson’s cousin.

The Respondent says that she is entitled to these goods as Mr Davidson promised her the rings, and in particular the 2 rings to her sons and the diamond ring to herself, as she states they were planning to get married.

The present position is that the Respondent refuses to return, and remains in possession of the 3 rings and the cash.

Test:

Madam, the TEST for this application, as I am sure you are familiar with is set out in the following paragraph, which is paragraph 7.

Pursuant to CPR 24.2, summary judgment may be granted on the whole of a claim or on a particular issue if:

• The Defendant has a real prospect of successfully defending the claim, AND

• There is no other compelling reason why the case should be disposed of at trial.

Madam,

It is the Defendant’s case, that the Respondent has wrongfully interfered with the goods and therefore an order for delivery of goods and for payment of any consequential damages should be made under section 3(2)(a) of Torts (Interference with Goods Act) 1977,

and this will be the focus of my submissions.

Submissions:

This application focuses on 4 submissions, which are set out in paragraphs 15-19 of my skeleton argument

Firstly,

The content of the will.

Secondly,

The alleged marriage is spurious

Thirdly,
Equity will not perfect an imperfect gift and

Fourthly,

The Uniqueness of the rings

I will address each of these in turn.

1. I will no move on to my first submission, The content of the will. This can be found in paragraph 15 of my skeleton argument.

It is submitted Madam, that the Will is silent on the rings and the cash.

If I can refer you to the Witness Statement of the Applicant, Mr Thomas Jarndyce. It can be found on page 18 of the bundle.

In paragraph 1 it states that Mr Davidson made his final Will on the 13th November 2010 leaving the bulk of his estate to the Marie Curie Cancer Care Trust, a registered charity.

There is no mention of the rings at all, and in the absence of other evidence, the rings should be classified as part of the estate and therefore belong to the Charity, as the Will states.

If I can refer you Madam to paragraph 5 of the Applicant’s WS.

It states that the Will was signed in November 2010. And as can be seen from the previous paragraph Mr Davidson became friendly in the summer of 2008.

Madam, Mr Davidson signed the will more than 2 years after he met the Respondent, and even though he was specifically asked by the executor if he wanted to leave anything to the Respondent, he refused to leave her anything at all.

If I can refer you Madam to paragraph 7 of the Applicant’s WS.

In the Spring of 2015 Mr Davidson asked the executor to come to his house to discuss the will. He told him that he wanted to leave one ring to his doctor and the other to the son of his former gardener, in gratitude for all the work they had done,

whereas Mrs Emmerson says, in her WS (paragraph 8 pg 32) that Mr Davidson wanted her two sons to have the rings.

Her two sons, who Mr Davidson did not like at all, as can be seen from the Respondent’s WS at paragraph 5, page 31. In her own words, Mr Davidson “would complain about noise from the children. He would shout at them and frighten them.”

It could not have been clearer therefore, that the rings were definitely not intended to go to Mrs Emmerson’s sons.

It is submitted that Mrs Emmerson’s sayings lack credibility, since she needs the rings to fund herself, and this is evidenced in paragraph 21 of the applicant’s WS, when Mr Davidson’s usual jeweller called the executor and told him that Mrs Emmerson had come in with the rings and told him that she was looking to sell them.

On the other hand, Madam, Mr Jarndyce, as the executor, LACKS motive, and is only trying to carry out Mr Davidson’s wishes, he has nothing to gain from the rings and therefore has no reason to lie.

The word “real”, on the summary judgment test, means that the respondent has to have a case which is “better than merely arguable” (editorial white book CPR 24.2.3), and the court will disregard prospects which are false, fanciful or imaginary.

and with reference to the evidence just mentioned, Madam, it is submitted that the Respondent does not have a REAL prospect of successfully defending the claim, as her case is not better than merely arguable.

I will now move on to my second submission, Which can be found at paragraph 16 of my skeleton argument. It is submitted that there were no plans for marriage and therefore Mrs Emmerson is not entitled to the diamond ring.

If I can refer you Madam to paragraph 7 of the Applicants WS.

It states that Mrs Emmerson begged Mr Davidson to move in with the children as she had nowhere else to go.

Madam, that is the sole reason why Mrs Emmerson moved in and not because Mr Davidson wanted them.

If I can refer you Madam to paragraph 9 of the Applicant’s WS.

It states that on the 28th of August the Emmerson family members and various friends were having a party at his house, a party which Mr Davidson had been forbidden to attend.

These are not signs Madam of a loving couple, or even a romantic relationship. Mrs Emmerson’s behaviour clearly suggests that she did not care for him and was using him. She was using old man who was having alcohol problems and suffering from diabetes, an old man who was in an unstable condition.

Eventually however he managed to step in and convince Mrs Emmerson to move out within two weeks.

In addition Madam, Mrs Emmerson’s behaviour post Mr Davidson’s death shows that a relationship did not exist.

If I can refer you to paragraph 12 of the Applicant’s WS.

Upon Mrs Emmerson discovering that Mr Davidson had not left her anything under the will, she hissed that she had put up with Mr Davidson’s, and I quote, “disgusting drunken groping and the stench of drink on his breath”.

Madam, these are not words to be said by someone who was planning to enter into marriage, and certainly you may think that if she found him “disgusting”, why accept his alleged proposal?

The answer is very simple: there was no proposal, there was no acceptance, there were no plans for marriage and therefore Mrs Emmerson is not entitled to the diamond ring in any way.

Furthermore, the fact that Mrs Emmerson moved out of the house reinforces the fact that after them living together their relationship worsened rather than improved.

If I can refer you Madam to the Respondent’s WS at page 32, paragraph 6. She says that things gradually worsened and she then realised that she would have to move out of the house.

It is submitted therefore that as their alleged relationship deteriorated, Mrs Emmerson moved out and therefore

there could not have been plans for marriage, and therefore the Respondent wrongfully interfered with the diamond ring.

Other than her words, there is absolutely no evidence at all about the marriage. No one else knew, and no steps were taken.

And on that basis it is submitted that the Respondent’s case is not more than merely arguable and consequently the Respondent does not have a real prospect of successfully defending the claim.

I will now move on to my third submission, Which can be found at paragraph 17 of my skeleton argument.

The case of Milroy v Lord formed the rule that Equity will not perfect a transfer that has not met the necessary formal constitution requirements, and the case of Richards v Delbridge states that Equity will not perfect an imperfect gift.

Madam, it is submitted that as far as the transfer of all three rings is concerned, the necessary requirements of a gift transfer, these being intention and delivery as I am sure you are aware of, were not complied with.

In Re Cole, a Court of Appeal case, it was established that a gift...