Cox v Cox and Others

• Jurisdiction: Bermuda
• Judge: Kawaley JA,Hargun JA,Hickinbottom JA
• Judgment Date: 21 March 2025
• Docket Number: Civil Appeal 2024 No 9
• Court: Court of Appeal (Bermuda)

Between:

David William Cox

Appellant

and

Rosanna Cox (in her personal capacity and as an Executor and Trustee of the Last Will and Testament of William Milner Cox dated 19 July 2020)

Amanda Jean Skinner (in her personal capacity and as an Executor and Trustee of the Last Will and Testament of William Milner Cox dated 19 July 2020)

David George Goodwin (in his personal capacity and as an Executor and Trustee of the Last Will and Testament of William Milner Cox dated 19 July 2020)

Respondents

[2025] Bda LR 35

Before:

Kawaley JA; Hargun JA; Hickinbottom JA

Civil Appeal 2024 No 9

In The Court of Appeal for Bermuda

Derivative action by a beneficiary under a will — Representative capacity — Special circumstances justifying derivative action

The following cases were referred to in the judgment:

Roberts v Gill & Co and anor[2009] 1 WLR 531

Prudential Assurance Co Ltd v Newman Industries Ltd[1981] 1 Ch 257

Bowler v John Mowlem & Co Ltd[1954] 3 All ER 556

Ingham v Wardman[2022] Bda LR 26

Alsop Wilkinson (a firm) v Neary and Ors[1995] 1 All ER 431

Mr D Kessaram for the Appellant

Mr J Pachai for the Respondents

JUDGMENT ofHargun JA

1. This is an appeal from the Judgment of Alexandra Wheatley AJ (“the Judge”) on a preliminary issue, namely the standing of David William Cox (“the Appellant”) to bring his action in the Supreme Court and the jurisdiction of the Supreme Court to grant the relief he is seeking. By Judgment dated 28 May 2024, the Judge dismissed the Appellant's claim against Rosanna Cox (“the First Respondent”), in her personal capacity and as an executor and trustee of the last Will of William Milner Cox dated 19 July 2020 (“Mr Cox” or “the Deceased” and “the Will”) on the grounds that (i) the claim pleaded by the Appellant in the Statement of Claim was a personal proprietary claim (as opposed to a derivative claim) which could not be pursued by him as he had no proprietary interest in the relevant property; and (ii) in any event the Appellant could not pursue a derivative action in his capacity as a beneficiary under the Will as there were no special circumstances which could justify the Appellant commencing a derivative action on behalf of the estate. The Judge further held that the Supreme Court did not have jurisdiction to hear this action.

Factual Background

2. As the Judge noted at paragraphs 6 to 10 of the Judgment, the relevant facts are not in dispute. The Appellant filed a Specially Endorsed Writ of Summons on 31 March 2023 (“the Writ”). In the Statement of Claim, the Appellant sought from the First Respondent the return of two items of furniture and furnishings, namely a mahogany tall-boy (“the Tall-boy”) and a gilt French mantel clock (“the Mantel Clock”) (collectively referred to as “the Chattels”). On 30 July 2020, Mr Cox passed away and in his Will named the three Respondents in this action as executors and trustees of his estate. The First Respondent was the third wife of the Deceased, and the Second Respondent and the Appellant are children from his first marriage. The Appellant is named as a beneficiary under clause 5(c) of the Will.

3. The Will provided, inter-alia, in clause 5(a) that the First Respondent should have the right to occupy the former matrimonial home (Mayflower) rent free for a period not exceeding two years from the date of his death. The Will also made provisions for the retention and distribution of the contents of Mayflower. Clauses 5(b) and (c) provided:

“b) UPON ROSANNA's departure from the Mayflower property at the end of the Rent Free License Period, ROSANNA shall be entitled to retain all contents of the Mayflower Property (including for the avoidance of doubt artwork) acquired after my marriage to ROSANNA in her sole discretion, and such items of contents shall constitute matrimonial property (“Matrimonial Property”).

c) UPON ROSANNA's departure from the Mayflower Property at the end of the Rent Free License Period, I DIRECT MY TRUSTEES to give any contents of the Mayflower Property inherited or acquired by me prior to my marriage to Rosanna (and/or any Matrimonial Property not retained by Rosanna) unto my son, DAVID absolutely.”

4. In anticipation of the First Respondent's departure from Mayflower, the executors and trustees had meetings and discussions at Mayflower to identify and in May 2022 agreed upon those items of household furniture and furnishings which were to remain in the Mayflower for the benefit of the Appellant and those items which the First Respondent was entitled to remove in accordance with the terms of clause 5(b) of the Will. The First Respondent asserts that in the lists prepared by the executors and trustees they agreed that the First Respondent is entitled to the Tall-boy. There is no mention of the Mantel Clock in those lists.

5. In the pre-action correspondence between the Appellant and the attorneys for the First Respondent, the Appellant asserted that the Chattels had been wrongfully removed by the First Respondent as these two chattels belong to the estate of Mr Cox and should pass to him under clause 5(c) of the Will. This assertion by the Appellant was disputed by the attorneys for the First Respondent. In a letter dated 7 March 2023 Wakefield Quin, attorneys for the First Respondent, set out the First Respondent's position in relation to the Chattels:

“Regarding the “Tallboy”, … this was purchased by our client in about 1989/1990 at an estate sale when she was still married to her first husband and was moved into Mayflower when she married your father. It was not in good condition then and it is not in good condition now. We find it unreasonable to expect our client to provide proof of purchase of this item dating back over 30 years and before her marriage to your father.

…

So far as the mantel clock is concerned, your father considered it to be “hideous” and was going to dump it but instead gave it to Rosanna as long as she kept it out of sight. That is why it was in the dining room… She does not know if it is repaired or not and, in any event, as we have noted, your father did not like it and gave it to her.”

The Statement of Claim and the Amended Defence

6. The parties were unable to resolve their differences and as a consequence on 31 March 2023 the Appellant filed the Writ claiming from the First Respondent the return of the Chattels. The Writ names the First Respondent in her personal capacity as well as in her capacity as an executor and trustee of the Will. The Second and Third Respondents are added as parties in their capacity as executors and trustees of the Will. In paragraph 8 and 9 of the Statement of Claim the Appellant seeks from the First Respondent delivery up of the Chattels:

“8… The First Defendant removed (or caused to be removed) the Tall-boy from the Deceased's said residence and retains possession or control of the said piece of furniture and refuses to deliver it up to be held for the Plaintiff pending the administration of the Deceased's Estate.

9… The First Defendant removed (or caused to be removed) the gilt French mantel clock from the Deceased's said residence and retains possession or control of it and refuses to deliver it up to be held for the Plaintiff pending the administration of the Deceased's Estate” (emphasis added)

7. In the Statement of Claim the Appellant seeks the following relief:

“1. A declaration that the Plaintiff is entitled to the mahogany Tall-boy and gilt French mantel clock pursuant to clause 5 (c) of the Deceased's Will pending the administration of the Deceased's Estate.

2. An Order that the First Defendant deliver up possession of the mahogany Tall-boy and gilt to the Plaintiff at Mayflower… forthwith to be held by and for the Plaintiff pending the administration of the Deceased's Estate.” (emphasis added)

8. In the Defence filed by the First Respondent dated 27 April 2023, the First Respondent asserted that the Chattels claimed by the Appellant in these proceedings in fact are...