Truell & Anor v Zalinska

Mr Justice Rajah:

1. A claim was brought by the First Claimant and the Second Claimant, as the executors of Mr Daniel Truell which was struck out on 15 October 2025 for failure to comply with my unless order of 2 October 2025. The Second Claimant was Mr John Rayner Hatchard who died on 17 January 2025. In the circumstances of this case the executorship passed to the First Claimant as the surviving executor so he is now the sole executor. He has had the conduct of the proceedings since 17 January 2025.

2. These proceedings commenced in 2020 and for the period between 2020 and 17 January 2025 these proceedings were brought by both the First and the Second Claimants as executors. During that period they were both personally liable for costs and any other orders which the Court might make requiring payment to the Defendant. I say any other orders because undertakings in damages have been given by both of these Claimants to the Court in respect of a Freezing Order which was obtained against Magda Zalinska, who was the original Defendant until her death, when her daughter was substituted in as Defendant, and that undertaking in damages continues in respect of undertakings which the Defendant proffered to secure the discharge of that Freezing Order. So during that period of 2020 to 2025 there was already a clear and known exposure on the part of both the First and the Second Claimant in respect of both the costs which were being incurred in relation to these proceedings and in relation to the undertaking in damages which they had chosen to give.

3. Ordinarily executors in this position would protect themselves either by obtaining a Beddoe Order or by obtaining the agreement of the beneficiaries of the residuary estate to the proceedings being brought or if one of the executors has a personal interest in the claim and the other does not, which might be the case here in respect of Mr Hatchard who seems to be a professional executor, then it might be appropriate for there to be an indemnity from the First Claimant to the Second Claimant. It is entirely unclear whether any of those arrangements have actually been put in place and neither Mr Reed nor Mr Wei can tell me whether they were. But be that as it may the fact is that that exposure was there at the date of Mr Hatchard’s death.

4. I am not entirely clear why the position was not regularised after his death by Knights coming off the record in relation to the Second Claimant. I am not entirely clear why Mrs Hatchard, who is the personal representative of the Second Claimant, was not notified of these proceedings and knew nothing about them. Those are matters which may have to be bottomed out at some later stage but the starting position must be that Mrs Hatchard must now be joined as the executor of her husband’s estate in respect of the claim which the Defendants want to make against his estate for both costs and for damages pursuant to the undertaking in damages.

5. Mr Wei says that would be unfair because firstly these proceedings have been struck out while the estate was under the sole stewardship of the First Claimant and that the Second Claimant, and certainly Mrs Hatchard, not only had no power to comply with the Unless Order which I made, but also had no control over what happened or what decisions the First Claimant made, and in fact knew nothing at all about the proceedings continuing between January and October of this year. But none of those points really deal with the fact that there was already an exposure by the date of Mr Hatchard’s death to orders being made against him whatever may have subsequently happened.

6. Mr Reed rightly says that if there are arguments to be made about what is just in terms of a Costs Order or in terms of satisfying the undertaking in damages, those need to be argued out and therefore Mrs Hatchard needs to be joined so that those arguments can be argued out on a later date. Many of the points which are being made by Mr Wei are really criticisms of the First Claimant, and not criticisms of the Defendant, and as I observed they may mean that the appropriate order might be an order which reflects the fact that responsibility, or primary responsibility, should be that of the First Claimant rather than the Second Claimant.

7. But that again is simply a matter for argument at a later date. The whole point of a joinder is to provide Mrs Hatchard with the opportunity to be able to make those arguments in answer to the Defendant. Mr Wei is effectively asking me to decide that there is no realistic claim which can be made by the Defendants and that is plainly not the case, so I am going to join Mrs Hatchard as a Defendant to these proceedings. This Transcript has been approved by the Judge. The Transcription Agency hereby certifies that the above is an accurate and complete recording of the proceedings or part thereof. The Transcription Agency, 24-28 High Street, Hythe, Kent, CT21 5AT Tel: 01303 230038 Email: [email protected]