Hails & Ors v David Graham Lawton (as the Executor of the Estate of Beryl Foy)

HIS HONOUR JUDGE RICHARD WILLIAMS: Introduction and background

1. This is my judgment following the hearing of the claimants’ application to commit the defendant, Mr David Graham Lawton, to prison for contempt of court for his alleged failure to comply with a court order made on 28 May 2025 (“ the Order ”).

2. By way of brief background: i) The claimants at the time of issue of the substantive claim were 9 of the 15 surviving beneficiaries under the Will of Beryl Foy (“ the deceased ”), who died on 31 March 2021. ii) On 9 July 2021, the defendant obtained grant of probate in respect of the estate of the deceased. The probate application valued the net estate at some £850,000. The claimants say that save for modest distributions totalling some £50,000, the defendant had not distributed the estate of the deceased. iii) The claim was issued on 24 January 2025 and by which the claimants seek an account. iv) The defendant failed to engage with the proceedings - he failed to file an acknowledgement of service, he failed to attend the directions hearing on 31 March 2025, and he failed to attend the disposal hearing on 28 May 2025. v) The Order made at the disposal hearing required the defendant by 4pm on 25 June 2025 to serve copies of documentation relating to the estate, a full account of the estate and a Civil Procedure Rules (“ CPR ”) compliant witness statement setting out in detail his dealings with the estate. The Order was made subject to a penal notice. vi) The statement of the process server dated 20 June 2025 confirms that the defendant was personally served with the Order on 18 June 2025. vii) By a series of emails on 29 June 2025 the defendant provided some limited material. viii) On 23 July 2025, the claimants’ solicitors wrote to the defendant explaining in detail why the claimants considered that the defendant had not fully complied with the terms of the Order and what the defendant needed to do to rectify the situation. In particular, at that stage the defendant had still not provided a full and proper account of his dealings with the estate, what the estate now consisted of, and an explanation for any deficit. ix) The committal application was made on 20 November 2025. The statement of the process server dated 2 February 2026 confirms that the committal application, supporting evidence and notice of today’s hearing were personally served upon the defendant on 28 January 2026. x) Yesterday afternoon and early evening the defendant sent to the claimants’ solicitors a large number of emails attaching some 106 pages of material. I have been provided with a bundle of that material. Proceeding in the defendant’s absence

3. The defendant is not in attendance today.

4. Committal proceedings are essentially criminal in nature, and so it is unusual, but by no means exceptional, to proceed to determine a committal application in the absence of a defendant, although I should only do so with great caution and with close regard to the fairness of the proceedings: Sanchez v Oboz (Committal Proceedings In Absence Of Respondents) [2015] EWHC 235 (Fam) .

5. After careful consideration, I have decided to proceed in the absence of the defendant for the following reasons: i) Firstly, the committal application in Form N600 advised the defendant of his rights including the right to be legally represented and the availability of legal aid without any means testing. ii) Secondly, I am satisfied that the defendant has been personally served and was aware of the hearing today but has chosen not to attend. No application has been made by or on behalf of the defendant to adjourn today’s hearing. iii) Thirdly, I am satisfied that, even if I was to grant an adjournment, which has not been requested, to enable the defendant to attend, he would again choose not to do so. He has failed to attend a number of court hearings previously. iv) Fourthly, the alleged breach is straightforward, and there is no undue prejudice to the forensic process in proceeding in the absence of the defendant. v) Fifthly, the deceased died nearly five years ago, and further delay would be wholly contrary to the Overriding Objective of dealing with cases justly and at proportionate cost. Alleged breaches

6. I have considered the further material provided yesterday by the defendant. For the following reasons, I find to the criminal standard, so that I am sure, that the defendant has breached and continues to breach the Order: i) The defendant has admitted a net balance received into the estate of some £780,000, but which is no longer available for distribution. ii) The defendant has provided a half page purported explanation to assert that there is no money left in the estate because the estate assets were subject to massive reduction in their value and also subject to fraudulent activities. iii) It is not for the claimants’ solicitors or the claimants to attempt to piece things together to determine what has happened to the estate assets from the document dump that occurred yesterday. It is the defendant, as executor, who is under a fiduciary duty to administer the estate. iv) The defendant was and remains required under the Order to provide a CPR compliant witness statement to include a full and proper account of his dealings with the estate assets and a full and proper explanation for the alleged deficit. He has done neither. Sentencing

7. I will adjourn sentencing. One of the functions of sentencing is to secure compliance. The claimants need proper transparency as to the defendant’s dealings with the estate assets. The defendant will be unable to comply with the Order if he is in prison. Also, it is only fair that the defendant be given the opportunity to raise any matters in mitigation before sentencing, and which matters will include the extent to which the defendant complies with the Order between now and the next sentencing hearing. Costs

8. The court has a wide discretion as to whether one party should pay another party’s costs. The usual order is that the unsuccessful party shall pay the successful party’s costs. Clearly the claimants are the successful parties and in my view are entitled to recover their costs and, indeed, in his latest email the defendant does not object to paying the claimants’ costs.

9. In light of the defendant’s conduct, I consider that costs on an indemnity basis should be awarded.

10. In relation to the summary assessment of those costs, I consider that the costs as per the schedule are reasonable and I summarily assess the costs in that amount. The costs shall be payable within 14 days. Alternative method of service

11. Rather than the claimants being put to the yet further expense of instructing a process server to personally serve the defendant, and in light of the defendants communications with both the court and the claimants’ solicitors by email, I find that there is good reason to direct that the consequential order be served by an alternative method of service being by way of email, and that deemed service shall be six hours after the email is sent. I also direct that the consequential order again contain a clear explanation as to what the defendant needs to do to secure compliance with the Order. (Discussion re consequential order follows) Digital Transcription by Marten Walsh Cherer Ltd 2 nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP Telephone No: 020 7067 2900 DX: 410 LDE Email: [email protected] Web: www.martenwalshcherer.com