Clarke v Marlborough Fine Art (London) Ltd & Anor [2001] EWHC B4 (Ch) (20 November 2001)

Clarke v Marlborough Fine Art (London) Ltd & Anor [2001] EWHC B4 (Ch) (20 November 2001)

Permission to amend the Particulars of Claim to plead actual undue influence is refused in its current form due to factual inconsistency with the existing case of presumed undue influence and breach of fiduciary duty. However, permission is granted in principle to plead actual undue influence as an alternative case, provided the amendment is clearly drafted as an alternative and supported by evidence. The requirements of CPR Part 22 do not prohibit alternative factual pleadings by an executor where evidence supports each alternative. The evidential threshold for the amendment is met, subject to proper drafting and compliance with procedural rules.

Citation
[2001] EWHC B4 (Ch)
Parties
Claimant: Professor Brian Clarke (Executor of the Will of Francis Bacon); First Defendant: Marlborough Fine Art (London) Limited; Second Defendant: Marlborough International Fine Art Establishment
Jurisdiction
England and Wales
Judgment Date
20 November 2001
Procedural Posture
Chancery Division Civil Claim / Interlocutory Application for Permission to Amend Pleadings
Outcome
Application granted in part and refused in part
Legal Topics
Fiduciary Duty, Undue Influence, Pleading Amendments, Agency, Civil Evidence
Equity Civil Procedure Fiduciary Duty Undue Influence Pleading Amendments Agency Civil Evidence

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Parties

Professor Brian Clarke (Executor of the Will of Francis Bacon)

Claimant

Marlborough Fine Art (London) Limited

First Defendant

Marlborough International Fine Art Establishment

Second Defendant

Procedural Posture

Chancery Division Civil Claim / Interlocutory Application for Permission to Amend Pleadings

Legal Issues

  1. 1 Whether the claimant should be granted permission to amend the Particulars of Claim to plead actual undue influence as an alternative to presumed undue influence and breach of fiduciary duty.
  2. 2 Whether the proposed amendments are inconsistent with the existing pleadings and whether such inconsistency is permissible under CPR Part 22.
  3. 3 Whether there is a sufficient evidential basis for the proposed amendment alleging actual undue influence.

Ratio Decidendi

Permission to amend the Particulars of Claim to plead actual undue influence is refused in its current form due to factual inconsistency with the existing case of presumed undue influence and breach of fiduciary duty. However, permission is granted in principle to plead actual undue influence as an alternative case, provided the amendment is clearly drafted as an alternative and supported by evidence. The requirements of CPR Part 22 do not prohibit alternative factual pleadings by an executor where evidence supports each alternative. The evidential threshold for the amendment is met, subject to proper drafting and compliance with procedural rules.

Court Disposition

Application granted in part and refused in part

Orders

  • Permission to amend the Particulars of Claim to plead actual undue influence is refused in its current form.
  • Permission is granted in principle to plead actual undue influence as an alternative to the existing case, subject to proper drafting and further consideration if specific complaints arise.