Ashtons success in Court of Appeal case: Bowser v Smith 2023

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Polly Stephenson, a partner in our contentious trusts and probate team, has had further success recently in the Court of Appeal in the case of Bowser v Smith [2023] EWCA Civ 923, in which she instructed the excellent Edward Hicks of Radcliffe Chambers.

The case is a salient and sobering lesson in the importance of embarking upon hostile litigation as a PR only as a last resort and following appropriate pre-action conduct.

Background to Bowser v Smith [2023]

The case involved the two executors appointed by the Will of the deceased, who died in a road traffic accident in May 2022. One executor was Mr Bowser, a partner in a firm of solicitors in March,  Cambridgeshire. The other executor was the deceased’s widow, Julie, from whom he was estranged at the time of his death and with whom he had 10 children, nine of whom were minors at that time.

The deceased and Julie had been in the process of divorcing, and financial remedy proceedings were underway at the date of his death. The deceased had executed a Will under which he left the entirety of his estate to his 10 children: no provision had been made for Julie, presumably because the deceased anticipated that the financial relief proceedings would have been concluded before he died. In the event the deceased died suddenly at the age of 40 in a police chase, and so Julie’s only recourse would be under the Inheritance (Provision for Family and Dependants) Act 1975.

Mr Bowser felt that Julie’s 1975 Act claim gave rise to a conflict of interest sufficient to preclude her from acting as executor. Just a week after the deceased died, he invited her to renounce. A fortnight after that, he threatened an application for her removal as executor on the basis of this alleged conflict of interest and intermeddling: he threatened to seek his costs of the application from her personally.

Mr Bowser did not seek Beddoe Relief, nor did he issue a letter before action, but as Julie did not respond to these letters (understandably, given that she was grieving and looking after her grieving children), he issued proceedings barely two months after the date of death. Julie disputed the alleged conflict of interest and complained about Mr Bowser’s behaviour, but in her evidence in response, she indicated that she would step down if he did. Mr Bowser refused to accept that proposal, instead pressing for an urgent hearing. It was at that stage that Ashtons was instructed: we immediately wrote to Mr Bowser, asking him to resolve the matter without further recourse to the Court in order to save costs and prevent further anguish for the family. Mr Bowser was beseeched, over a number of letters, to act with restraint – he was also told that Julie was not in a position of conflict as a result of her 1975 Act claim. Ashtons also reiterated Julie’s offer to stand down if he did. He refused to do so, and the matter was listed for a hearing in November 2022 before Mrs Justice Bacon.

Following some unambiguous observations made by the Judge at the outset of the hearing, the parties agreed by consent that they should both be removed, with an independent professional PR being appointed in their place. Julie sought her costs and sought also to deny Mr Bowser his indemnity given his conduct. Following written submissions, Bacon J ordered Mr Bowser to pay Julie her costs, and he was indeed deprived of his indemnity. Mr Bowser appealed to the Court of Appeal.

Court of Appeal decision

The Court of Appeal dismissed Mr Bower’s appeal. The Court reiterated the relevant principles that determine when a personal representative may be deprived of his right to reimbursement from the estate for expenses they have incurred before reiterating the correct approach to be adopted by the Court when an action is settled apart from the question of costs, providing a detailed analysis of BCT Software Solutions Limited v C Brewer and Sons Limited [2004] C.P.Rep 2.

The Court of Appeal went on to find that as the parties had agreed to allow Bacon J to determine the issue of costs upon written submissions alone, it would only be appropriate to intervene if the result had been “manifestly unjust,” which it was not. The Court further found that Bacon J was entitled to conclude that Mr Bowser’s conduct in pursuing his application for Julie’s removal was not a proper and reasonable exercise of his powers as executor.

The Court of Appeal also concluded that Julie was not conflicted as a result of her 1975 Act claim and that Mr Bowser was incorrect in pursuing this as grounds for Julie’s removal. The Court emphasised the need for litigation to be a last resort and for proper pre-action procedures to be followed. It focused heavily on the correspondence passing between the solicitors, and this should serve as a lesson to all lawyers about the tone and content of correspondence that could be the subject of judicial scrutiny: one letter from Mr Bowser is described as “regrettably [setting] the correspondence on a downward path from which (as far as Bowsers were concerned) it never recovered”.

Read the full Bowser v Smith [2023] judgment here: Bowser v Smith [2023] EWCA Civ 923

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