Tadros & anr v Barratt & ors [2014] EWHC 2860 (Ch)

Analysis

Wedad Tadros (the deceased), a Dutch national, died on 26 October 2006 leaving a number of wills in several jurisdictions. The wills forming the basis of these proceedings were an English will dated 13 September 2010 but purportedly signed on 14 May 2011, and a Dutch will dated 27 May 2011 which created a foundation to benefit orphans (the foundation). The foundation was formally set up on 6 November 2013 under Dutch law. Both wills were drafted as though the deceased’s husband were alive at the time, although he had died on 23 September 2010. There were concerns over the validity of these two wills and these concerns related mainly to capacity.

The claimants (the deceased’s brothers) commenced proceedings in March 2103 in relation to the English will, seeking a declaration that the deceased died intestate. The proceedings were commenced against the first eight defendants. The foundation was later added as a defendant pursuant to a court order. The second defendant was the deceased’s niece and the sole beneficiary of the English will. She was also the sole executor of the Dutch will and became the director of the foundation up until 13 April 2014. She argued that the English will was valid and the Dutch will dealt only with the Dutch assets so it did not revoke the English will (protecting her inheritance). On 3 March 2014 the second defendant and the foundation brought proceedings in the Netherlands against the claimants seeking a declaration that the foundation was the sole beneficiary of the deceased’s estate. The claimants subsequently applied to the court for an anti-suit injunction to stop these Dutch proceedings.

The court considered the cases of Royal Bank of Canada v Co-operatieve Centrale Raiffeissen-Boerenleenbank [2004] 1 CLC 170 and Deutsche Bank AG v Highland Crusader Partners LP [2010] 1 WLR 1023. These cases set out the key legal principles in relation to the granting of anti-suit injunctions. This required a court to consider whether the reason for the foreign proceedings was ‘vexatious or oppressive or interfered with the due process of the court’. The conclusion that proceedings are vexatious or oppressive could be reached if:

1. (a) foreign proceedings had been issued but the English court was actually the natural forum for the trial of the dispute; and
2. (b) there was no advantage to a party in pursuing the foreign proceedings.

The claimants contended that England was the natural forum for litigation about the wills, that the issues concerning both wills overlapped and that in practice the English court would be able to apply Dutch law principles leaving little advantage in the foreign proceedings. The proceedings in the Netherlands were therefore vexatious and should be restrained.

The second defendant, as the executor of the Dutch estate, was obliged to support the foundation in the Dutch proceedings, although her position on the proceedings was neutral.

The foundation argued that the English proceedings should be stayed pending the outcome of the proceedings in the Netherlands. The foundation, under the Dutch will, was potentially entitled to the worldwide assets of the deceased as this will purportedly revoked the English will. In further support of its position, the foundation argued that:

1. 1. as the deceased was a Dutch national, the Netherlands was therefore a natural forum for any litigation concerning them;
2. 2. an order of an English court could not be directly enforced in the Netherlands;
3. 3. the anti-suit injunction would deprive it of legitimate juridical advantages, relating to costs; and
4. 4. in these circumstances, its conduct could not be considered vexatious or oppressive.

Held (denying the application):

1. 1) The court first needed to consider two preliminary matters:
2. (i) whether the second defendant and the foundation should be treated in the same way (the claimants submitted that the foundation was the ‘creature’ of the second defendant as she formalised the foundation under the Dutch will); and
3. (ii) what the dispute was between the claimants and the foundation.
4. 2) The court held that the second defendant and the foundation must be considered separately. The foundation was a separate legal person. As an executor of the Dutch will, if valid, the second defendant had a clear conflict of interest with the interests of the foundation.
5. 3) As to the dispute, the court concluded that the issues relating to the English and Dutch will were similar, albeit involving different laws. The wills were executed within two weeks of each other. The factual issues as to the deceased’s capacity and want of knowledge and approval of the wills overlapped. The factual issues in relation to the relationship between the deceased and the second defendant would also overlap. However the dispute, for the purposes of this injunction, depended on which of the parties was being considered.
6. 4) The claimants are directly interested in both the disputes about the English and Dutch wills. The second defendant is directly interested in the dispute about the English will only. The foundation is a beneficiary under the Dutch will. If the Dutch is invalid then the foundation has no claim and no possible existence and will not be concerned to know whether the English will was valid. Based on these considerations, from the foundation’s perspective, the proceedings for the foundation are about a Dutch will only.
7. 5) Applying the guidance from the Royal Bank of Canada case, is the English court a natural forum for the dispute? As between the claimants and the second defendant it was, and therefore the second defendant’s continuation of the Dutch proceedings could be considered vexatious. However, for the foundation the Dutch court was the natural forum. This in itself was sufficient to justify the refusal of an anti-suit injunction against the foundation as the proceedings could not be considered vexatious.
8. 6) Still further, the court considered the other juridical advantages which the parties would obtain by litigating in the Netherlands. These so-called advantages were given limited weight.
9. 7) Application denied. No anti-suit injunction was granted against the foundation and, as the proceedings were to continue in any case, there was little merit in granting an injunction against the second defendant.

JUDGMENT MR MORGAN J: Introduction [1] This is an application for an anti-suit injunction made in the course of current proceedings in England which concern the estate of the late Wedad Tadros (the deceased). The deceased left a number of purported wills. Although the validity of these purported wills is challenged, I will refer to …

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