Andrews & Ors v Andrews & Anor

JUDGMENT

JUDGE HODGE QC : This is my extemporary judgment in a claim by three individuals: Mr Peter David Andrews, Mrs Gillian Ruth Andrews, and Dr David Timothy Andrews (as claimants) against two defendants, Zoe Isobel Andrews (who is a child and acts by Mr Steven Anselm Fox, her litigation friend) and Mr Timothy Robson Fairclough (as defendants) – claim number 3LV30311.

By a claim form issued in the Liverpool District Registry of the Chancery Division under Part 8 of the Civil Procedure Rules on 4 th November 2013, the claimants seek to rectify a voluntary discretionary settlement (known as the Andrews Family Trust) created by an inter vivos deed dated 1 st November 2010. That deed was made between the first and second claimants, Mr and Mrs Andrews (as settlors), and the first, second and third claimants, Mr and Mrs Andrews and their son Timothy (as trustees). The settlement created a lifetime settlement in favour of the granddaughter of Mr and Mrs Andrews and the daughter of Dr Andrews. The first defendant, Zoe Isobel Andrews, who is the daughter of Dr Andrews and his wife, is a child. She is sued on behalf of herself and also any future spouse or spouses and civil partner or partners. The second defendant is sued on behalf of all unborn or unascertained discretionary beneficiaries of the Andrews Family Trust.

By clause 8 of the settlement, there is an ultimate default trust in favour of a charity, the National Society for the Prevention of Cruelty to Children, but its interest only arises in the event of a failure or determination of the prior trusts, which is a most unlikely event; so unlikely indeed that it can, for all practical purposes, be ignored. In an email dated 4 th October 2010 the solicitor involved in the drafting of the trust, Mr Edward Bennett, described clause 8 as “standard”, commenting “In reality it will not matter as the default charity is extremely unlikely to benefit”. I am satisfied that its interest is so remote that there is no need for it to be joined as a party to these proceedings.

The evidence in support of the rectification claim is contained within three witness statements (all dated 31 st October 2013) from each of the three claimants. Although there are exhibits to all three witness statements, the fullest range of exhibits is that to the witness statement of the first claimant, Mr Peter David Andrews (exhibits PA1 through to PA7). Happily, this rectification claim is not opposed by anyone. Acknowledgments of servic