Seminar Notes 13.06.07 James Holmes-Milner

2 Gray's Inn Square Chambers

Seminar Notes 13.06.07 - James Holmes-Milner

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Seminar Notes

These notes were prepared by James Holmes-Milner and form part of the seminar Inheritance Act Claims - What you need to know in 2007 given on 13th June 2007 by members of the 2 Gray's Inn Square Chambers Property & Commercial Group.

James Holmes-Milner

Index

The Inheritance (Provision for Family and Dependants) Act 1975

Overview

General

Certain categories of person are entitled to apply to the court for financial provision from the estate of a dead person under the Inheritance (Provision for Family and Dependants) Act 1975 (“The Act”).

Section 1 of the Act enables such persons (where the deceased dies domiciled in England and Wales) to apply to the court for an order under section 2 of the Act for financial provision on the ground that the disposition of the deceased's estate (whether effected by his will or the law of intestacy) is not such as to make reasonable financial provision for the applicant.

Potential applicants are:

the deceased's surviving spouse or civil partner (or former spouse who has not remarried or former civil partner who has not formed a new civil partnership)

the deceased’s child

any person treated by the deceased as a child of his family

the deceased’s cohabitee, i.e. a person who, during the whole of the two year period preceding the deceased’s death, lived in the same household as the deceased and as the husband or wife of the deceased, or

any other person who was being wholly or partly maintained by the deceased immediately before their death.

See further the interpretation provisions at section 25 of the Act.

The application for the order must normally be made within six months of the date of grant of representation, but the court may allow a later application.

Section 2 of the Act empowers the court, "if it is satisfied that the disposition of the deceased's estate effected by his will … is not such as to make reasonable financial provision for the applicant", to make a variety of orders including an order for the payment to the applicant out of the estate of a lump sum of a specified amount.

Index

At each stage of the analysis, the court is required to have regard to the matters specified in section 3(1)(a) to (g) of the Act. Section 3(1) of the Act provides:

"Where an application is made for an order under section 2 of this Act, the court shall, in determining whether the disposition of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is such as to make reasonable financial provision for the applicant and, if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its powers under that section, having regard to the following matters, that is to say –

the financial resources and financial needs which the applicant has, or is likely to have in the foreseeable future;

the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

the size and nature of the net estate of the deceased;

any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;

any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant."

None of these matters is paramount; none of them is even a starting point: see In re Krubert [1997] Ch. 97 at 102E. It is for the trial judge to decide which considerations carry more weight. Clearly, some of them may not be relevant on the facts of a given case.

In a co-habitation case, section 3(2A) of the Act also requires the court to have regard to the following matters:

the age of the applicant;

the length of their co-habitation;

the contribution of the applicant to the welfare of the family of the deceased.

10.

Section 3(5) provides that, in considering the matters to which the court is required to have regard under section 3, the court has to take into account the facts as known to the court at the date of the hearing. Section 3(6) provides that, in considering any relevant person's financial resources, the court has to take into account his or her earning capacity; and that in considering the financial needs of any such person, the court has to take into account his or her financial obligations and responsibilities.

11.

By section 1(2)(b) of the Act, “reasonable financial provision” means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for her maintenance. This is a more restrictive definition than that which applies where an application is made by a spouse or civil partner – see section 1(2)(a).

Index

Intention

12.

The deceased’s intentions are not paramount.

13.

Evidence of the testator's reasons for his dispositions contained in a statement is admissible under the Civil Evidence Act 1995 Act as hearsay evidence and its weight is to be estimated in accordance with the provisions of s.4 of that Act.

14.

Four cases –

In Singer v Isaac [2001] WTLR 1045 the deceased left a series of four memoranda explaining his reasons for leaving less to his widow than may have been expected. Essentially, he complained that his marriage had not been as happy or as successful as he had hoped. He also set out the matters which he thought he should take into account for the purpose of making proper or reasonable provision for those with claims on him and stated his belief that the provisions of his will were fair and reasonable in all the circumstances. In the Master's judgment, the memoranda were indisputably admissible to the extent that they were relevant, and the questions which had to be considered were their relevance and their weight. As to their weight, he regarded them, particularly as they had manifestly been prepared with the benefit of legal advice, with some scepticism. They were in a real sense self-serving documents, being justificatory of the deceased's conduct in making the testamentary provision which he did make. The very fact of their existence could be seen as recognising that, subject to the explanation or reasons which they gave, reasonable financial provision had not been made. As to relevance, the exercise which had to be carried out was objective, and the question was, therefore, whether reasonable provision had been made, not whether the deceased believed that he had made reasonable provision. The most relevant fact contained in the deceased's memoranda was that the marriage had been unhappy for a long time. The Master accepted that that was the deceased's true perception of the state of affairs and that, from his point of view, there was never a true reconciliation. However, he also accepted the claimant's evidence that she genuinely believed that there had been a reconciliation; and the deceased had not disabused her of that belief. Thus his obligations had to be viewed in the light of the appearances he gave to her, namely that they had been reconciled, rather than by reference to his reservations which he did not explain to her. Consequently, the matters set out in the memoranda did not persuade the court that reasonable financial provision had been made.

Also in Stephanides v Cohen [2002] WTLR 1373, evidence was given as to various inconsistent wishes expressed by the deceased about what should happen to a shop. The District Judge held that whatever wishes the deceased had expressed, they were not relevant to the question which arose for decision, namely whether the will made reasonable provision for the claimant. Little weight should be given to vague and inconsistent evidence of the testator's intentions.

In Rees v Newbery and the Institute of Cancer Research [1998] 1 FLR 1041, the testator gave instructions for a new will which recognised a moral obligation to the applicant, whom he had put in a position of dependancy, and that those instructions were admissible as evidence of his intentions. He died before the will was executed. It was held that the object of the 1975 Act was to remedy the injustice of a dependant being deprived of such support "whether by accident or design" and it was right to make provision for him.

In Robinson v Fernsby [2003] EWCA Civ 1820, the deceased had, during the last years of her life, expressed the wish to treat the claimant more favourably in the distribution of her estate. However, there were fluctuations in her mental state during that period. While accepting that expressions of the deceased's testamentary intentions or her promises could be relevant, the court was not compelled to award financial provision which went beyond what was reasonably required for the claimant's maintenance. Whilst, at a time when the deceased had had testamentary capacity, she had expressed a wish to treat the claimant more favourably than her grandson the judge felt unable to draw any conclusion favourable to the claimant from the evidence of the deceased's intentions.

Conduct

15.

Rarely of consequence but see Gandhi v Patel [2002] 1 FLR 603 where the application failed because the wedding ceremony was, in English law, neither a valid marriage nor a void marriage entered into in good faith, but a non-marriage. The relationship between the parties had been marred by episodes of domestic violence, and Park J said that, had he taken a different view as to whether the claimant was eligible to apply for financial provision, he might, in view of her conduct towards the deceased, have reduced the provision which he would otherwise have thought it right to make for her.

16.

See also Stephanides v. Cohen (above) where the conduct of the deceased's son was a significant factor. It was found that the claim of the widow for reasonable provision was considerably more compelling than his (issues of drug addiction and unsuccessful rehabilitation).

Index

Does your client meet the requirements?

Capacity to bring a claim

17.

Adult children, spouses and partners are dealt with later. That leaves

children who are under 18 years old,

any person treated by the deceased as a child of his family and

any other person who was being wholly or partly maintained by the deceased immediately before their death.

18.

Category (c) is (for obvious reasons) most commonly in issue. The gateway in section 1(3) requires that the deceased

Was making a contribution in money or money’s worth

Immediately before their death

Which was substantial

And made towards the claimant’s reasonable needs

Otherwise than for full valuable consideration

19.

t embraces any person who was receiving a net benefit from the deceased. Where payment is received in return for services such as housekeeping or companionship the court has to identify whether the claimant received more in money’s worth than the value of their contributions. The Court must look at the problem in the round, apply a common sense approach avoiding fine balancing computations: Bishop v. Plumley [1991] 1 WLR 582. In that case, Butler-Sloss LJ refused to value the claimant’s housekeeping services by reference to market rates thus allowing the claimant to establish a dependancy.

20.

It excludes persons who cared for the deceased without reward.

21.

Thus in Re B (deceased) [2000] 1 All ER 665, a mother successfully sued the estate of her daughter for maintenance. The daughter was disabled from birth. She was cared for by her mother. The Court of Protection also made regular payments to the mother, in her capacity as receiver, for L's maintenance, but did not give the mother an allowance or remuneration for her labour in caring for L.

22.

Detail: The parents were former co-habitees who parted shortly after the birth of their daughter, L. Due to medical negligence at birth, L suffered severe mental and physical disabilities, and she was eventually awarded £250,000 in damages. Her financial affairs were placed under the control of the Court of Protection which appointed her mother as receiver. A property was purchased for the joint occupation of L and her mother, with 75% of the purchase price coming out of the damages and the rest being provided by the mother. The Court of Protection also made regular payments to the mother, in her capacity as receiver, for L's maintenance, but did not give the mother an allowance or remuneration for her labour in caring for L. L died intestate and her estate passed to her mother and father in equal shares. The mother subsequently sought to bring proceedings under the Act for reasonable provision out of L's estate, contending that she had been maintained by L within the meaning of s 1(1)(e). Under s 3(4), the court was required to consider the extent to which, and the basis upon which, the deceased had assumed responsibility for the applicant's maintenance when an application was made under s 1(1)(e). By the time of the mother's application, the limitation period had expired, and she therefore required the court's permission to bring proceedings out of time. The master granted the mother such permission, and also dismissed an application by the father to have the proceedings struck out. On the father's appeal, the judge held that the Court of Protection payments had been made solely to meet L's reasonable needs, that L had not assumed responsibility for her mother's maintenance within the meaning of s 3(4), that she had therefore not maintained the mother for the purposes of s 1(1)(e) and that accordingly the case fell outside the scope of the 1975 Act. The mother appealed. It was held, by the CA, that in determining whether one person had made a substantial gratuitous contribution to another person's needs for the purposes of s 1(1)(e) and (3) of the 1975 Act, the benefactor's motives or intentions were irrelevant except so far as 3(4) made them relevant to the court's task of deciding whether to make provision for the applicant and, if so, in what form and on what scale. Although it had been recognised that that provision added something to the threshold test in s 1(3), the fact that one person made a substantial contribution to another person's needs in itself raised an inference of an assumption of responsibility for the latter. Moreover, there was nothing absurd in the notion of the Court of Protection acting as the conscience of a patient and making provision for those to whom the patient would have felt a moral obligation if of full mental capacity. In the instant case, it would have been obvious to the Court of Protection that L's funds were being used in a way that met her mother's financial and material needs, in order to enable the mother to look after her daughter's physical and emotional needs. Furthermore, that commitment had been expected to continue throughout L's lifetime, unless the funds became exhausted or there was some other unexpected turn of events. Accordingly, the judge had erred in holding that the case fell outside the court's jurisdiction under the 1975 Act, and the appeal was allowed.

Index

The 3-stage test

23.

Having established entitlement, the Court must consider 3 main issues: Re Rowlands (deceased) [1984] FLR 813 at 822F (the second of which is often overlooked):

Whether the disposition of the deceased’s estate effected by the intestacy was such as to make reasonable financial provision for the claimant?

If not, whether the Court should exercise its powers under section 2?

If the Court does decide to exercise its powers, in what manner it should do so?

Unreasonable?

24.

The test is objective. It involves a value judgment informed by the matters under section 3(1)(a) to (g) of the Act.

Taking instructions

25.

Send a checklist of financial and other relevant matters to the client. As well as obtaining information about the potential, you need as much similar information as possible on the main beneficiaries and on the extent of the estate. Form E, as used in matrimonial proceedings, is a useful starting point for such a checklist. Some textbooks contain example checklists.

Index

Practice & Procedure

Caveats

26.

As the judgment in the case of Parnall v Hurst [2003] WTLR 997 confirms, the entry of a caveat by or on behalf of a claimant in a 1975 Act claim is wholly inappropriate. HH Judge Langan QC observed that:

"It is elementary that the only proper object of a caveat is to prevent the issue of a grant in respect of a testamentary paper which, on the caveator's case, is not the last valid will of the deceased. To enter a caveat where the caveator's intention is to make a claim under the Inheritance Act is wholly wrong, first, because ex hypothesi the validity of the will is admitted; second, because a delay in the grant of probate entails a corresponding delay in getting the caveator's claim on foot".

27.

The correct course of action is not to prevent the issue of a grant, but to ensure that the prospective claimant is made aware of the issue of a grant and the fact that the time within which the claim can be issued without the permission of the court has begun to run. This can be achieved by applying for a standing search in accordance with rule 43 of the Non-Contentious Probate Rules 1987.

No grant of probate / administration

28.

Cohabitees may bring a probate claim to challenge the will (see later). If they wish to claim against an estate under the Act they may invite the Official Solicitor to extract a grant where there are no executors or administrators, willing or able to do so: see paragraph 25.164 of Tristram and Coote's Probate Practice.

Index

The claim

29.

See CPR 57.14 – 57.16 and 57PD.15 – 57PD.18.

30.

Key features:

Must be a Part 8 claim: 57.16(1). N208 must be used.

Thus Rule 8.3 (acknowledgment of service) and rule 8.5 (filing and serving written evidence) apply. Note the written evidence filed and served by the claimant with the claim form need not be in the form of a witness statement or affidavit. CPR Part 57.16 applies CPR Part 8 to claims under the Act. Part 8.5(7) provides that the claimant may rely on the matters set out in his claim form as evidence under this rule if the claim form is verified by a statement of truth. See also CPR 8PD.7.2 which states that evidence will usually be in the form of a witness statement or an affidavit but a claimant may rely on the matters set out in his claim form provided that it has been verified by a statement of truth.

Rule 8.6 provides that no evidence may be relied on at the hearing unless served in accordance with Rule 8.5 or if the Court gives permission.

The statements of case should be entitled "In the Matter of the Inheritance (Provision for Family and Dependants) Act 1975".

The written evidence filed and served by the claimant with the claim form must have exhibited to it an official copy of the grant of probate or letters of administration in respect of the deceased's estate and every testamentary document in respect of which probate or letters of administration were granted.

The court office might refuse to issue even a protective claim which does not comply with the rules.

If permission is required to bring the claim out of time under s.4 of the Act, such permission should be asked for in a separate paragraph of the claim form. Where an order is sought under s.9 of the Act (property held on a joint tenancy) or under ss.10 or 11 this relief should be claimed in the claim form.

Defendants must file and serve acknowledgment of service and any written evidence not more than 21 days after service of the claim form on him (28 if out of the jurisdiction). All defendants who wish to rely on written evidence must file it when they file their acknowledgement of service: Part 8.5(3). It is no longer permissible for defendants who are not personal representatives to hold back from preparing or filing any evidence until after the first directions hearing: all have just 21 days to file and serve their evidence: Part 57.16(4). And they cannot rely upon any written evidence at the hearing of the claim unless (i) it has been served in accordance with CPR Part 8.5, or (ii) the court gives permission: CPR Part 8.6(1).

A defendant who is a personal representative who wishes to remain neutral in relation to the claim and agrees to abide by any decision which the court may make should state this in Section A of the acknowledgement of service form. It is normally appropriate for a personal representative who is not a beneficiary to adopt a neutral stance in relation to a claim issued within time.

A defendant who is a personal representative is required to file and serve written evidence which includes the information required by 57PD.16(1) to (4), i.e. they must state to the best of their person's ability— (1) full details of the value of the deceased's net estate, as defined in section 25(1) of the Act; (2) the person or classes of persons beneficially interested in the estate, and (a) the names and (unless they are parties to the claim) addresses of all living beneficiaries; and (a) the value of their interests in the estate so far as they are known. (3) whether any living beneficiary (and if so, naming him) is a child or patient within the meaning of rule 21.1(2); and (4) any facts which might affect the exercise of the court's powers under the Act. This evidence must include full details of the size and nature of the deceased's "net estate" as defined in s.25 of the Act.

Claimant has 14 days to file evidence in reply.

Index

High Court or County Court?

31.

Section 25 of the County Courts Act 1984 as amended by the High Court and County Courts Jurisdiction Order (SI 1991/724) art.2(8) and Schedule Pt 1 confers on the county court an unlimited jurisdiction to hear and determine claims under the Act.

32.

Claims under the Act ought not normally be transferred to a “Chancery county court”, i.e. Central London, Birmingham, Bristol, Cardiff, Leeds, Liverpool, Manchester, Newcastle-upon-Tyne and Preston, unlike other Chancery matters.

33.

These (guidance only) are proceedings under the Companies Acts; other disputes among company shareholders; corporate insolvency proceedings (except for winding up petitions by creditors); personal insolvency proceedings (except for bankruptcy petitions, interim orders and applications to set aside statutory demands); directors' disqualification proceedings; claims within CPR Part 56 (Landlord and Tenant Claims and Miscellaneous Provisions about Land) other than applications under s 24 or s 38(4) of the Landlord and Tenant Act 1954 or under the Access to Neighbouring Land Act 1992; probate claims, or claims for the rectification of wills, substitution and removal of personal representatives within CPR Part 57 (probate claims ought not to be started outside a Chancery county court in any event); proceedings relating to the estate to a deceased person, or trusts or to charities within CPR Part 64; proceedings under s 14 of the Trusts of Land and Appointment of Trustees Act 1996 (though a simple case of a joint property dispute, where there is little or no dispute as to the beneficial shares, may best be dealt with at the home county court); proceedings relating to intellectual property, including passing-off; proceedings relating to land, easements, covenants or contracts relating to land where an injunction, specific performance or declaration is sought, or where there are substantial or complex issues (though not all injunction cases are appropriate for transfer, eg housing disrepair cases and many neighbour disputes); proceedings for breach of a restrictive covenant, breach of trust or breach of fiduciary duty where an injunction is sought or where there are substantial or complex issues; claims for rescission on the grounds of undue influence or other equitable grounds, or for rectification of a document; claims relating to membership of, exclusion from, or dissolution of, a club or other unincorporated association; other claims—for instance for professional negligence or for breach of contract—which involve issues of trust, company, intellectual property, land or conveyancing law or procedure; claims for the dissolution of partnerships or the taking of partnership accounts; and matters other than those listed above, where an account is one of the remedies sought and the issues likely to arise on the account are substantial or complex. 2 Proceedings in the High Court under the Act must be issued in either the Chancery Division or the Family Division: CPR 57.15(1). The CPR applies to proceedings under the Act which are brought in the Family Division, except that the provisions of the Family Proceedings Rules 1991 relating to the drawing up and service of orders apply instead of the provisions in Pt 40 and its practice direction: CPR 57.15(2). The normal rules as to, and the criteria for, the transfer of claims between High Court and County Court and within the High Court apply to claims under the Act. In the High Court claims under the Act may be tried by a Master (Chancery Division) or District Judge (Family Division): Practice Direction—Allocation of Cases to Levels of Judiciary 2 BPD 4.1.

Index

Parties

34.

The personal representatives of the deceased are necessary defendants. Residuary beneficiaries are normally included. Others may be joined later, as appropriate.

Service out of the jurisdiction

35.

Rule 6.20(18) provides that a claim form may be served out of the jurisdiction with the Court's permission if the claim is made under an enactment specified in the relevant Practice Direction which includes the Act.

Listing in private

36.

39PD.1.5(9) provides that the hearing in the first instance be listed in private.

FDR

37.

In the Principal Registry cases have been listed for the equivalent of a FDR hearing with comparable directions to AR proceedings.

At the final hearing

38.

On the hearing of a claim the personal representative must produce to the court the original grant of representation to the deceased's estate

Compromise of claims under the Act

39.

A personal representative does not have power under s.15 of the Trustee Act 1925 to compromise claims under the Act as a claim under the Act is not a claim against the estate but a claim to become a beneficiary, or to obtain an increased beneficial interest, in the estate. A compromise therefore requires the consent of the claimant and all beneficiaries whose interests are affected by its terms. For that reason it is important to ensure that all such beneficiaries are made parties to the claim.

40.

It may be necessary for proceedings under the Act to have been issued in order to be effective for tax purposes. Where a claim under the Act is compromised and an order is sought under s.2 of the Act, the court must be satisfied not only that the order is within its jurisdiction but also one which may properly be made. This applies especially if more than two years have elapsed since the death of the deceased and where the effect of the order is to confer a substantial advantage on the parties at the expense of the revenue: In re Goodchild [1997] 1 W.L.R. 1216 at 1231D–E per Morritt L.J.

41.

A master or district judge has power to approve compromises under the Act without financial limit: 2BPD 5.1(a).

42.

Where the approval of the court is sought to a compromise of a claim under the Act on behalf of a child or patient an opinion on the merits of the compromise given by counsel or solicitor acting for the child or patient must be obtained and a copy of that opinion and the instructions on which it was given lodged with the court. Such approval may be sought before proceedings are begun under CPR 21.10(2).

Index

Final Orders

43.

Where the court makes an order under the Act the original grant together with a sealed copy of the order must be sent to the Principal Registry of the Family Division for a memorandum of the order to be endorsed on or annexed to the grant: 57PD.18.2.

44.

Every final order embodying terms of compromise made in proceedings under the Act must contain a direction that a memorandum of the order should be endorsed on or permanently annexed to the probate or letters of administration and that a copy of the order be sent to the Principal Registry of the Family Division with the relevant grant of probate or letters of administration for endorsement: 57PD para.18.3.

Costs

45.

Costs will be at the discretion of the court in accordance with CPR Part 44 and subject to costs protection rules in CPR Part 36. Normally costs will be paid by the unsuccessful party to the successful party. Thus in a normal case, where the executor remains neutral so the spat is between claimant and the beneficiary under the will or intestacy, the unsuccessful claimant or beneficiary will bear the costs.

46.

It is suggested in some text books that where the claimant recovers less than the entire estate, both sides’ costs – assuming that none has acted unreasonably – should be paid out of the estate: Re Besterman [1981] 3 FLR 255. Such a course under the CPR would probably require special circumstances and no claim should be brought or defended without advising the client that costs should normally follow the event.

47.

Personal representatives acting in that capacity will be entitled to their costs on an indemnity basis, although the court has the discretion under the CPR costs rules to disallow such costs (for example, if the representative has acted unreasonably).

48.

Personal representatives who are also beneficiaries are subject to the same rules as beneficiaries.

Index

Pitfalls

49.

The principal pitfalls are:-

Missing the 6 month time limit

Non-compliance with the rules

Evidential deficiencies

Time limit

50.

Section 4 of the Act provides a 6 month time limit. The claim must not be issued after 6 months from the date when representation is first taken out. The date of grant is not included in calculating time. Where there was a grant on 10th March the claim must be issued on or before 10th September in the same year. However, delay within that period may be criticized.

51.

A premature application is probably not invalid but there is conflicting authority. Given CPR 57.16(3) it is difficult to see how the mistake could now be made.

52.

Each applicant must apply in time.

53.

Section 20(1) provides that the personal representative will not be liable for distributing after the end of the period of six months but the claimant may recover any part of the estate so distributed.

Extension of time

54.

Apply as soon as possible. If you wait until trial the costs implications (for the insurers!) are far increased.

The criteria

55.

See Re Salmon [1981] Ch. 167: Discretion is unfettered but to be exercised judicially. Time limit substantive not procedural, so applicant must make a substantial case for depriving those protected by the rule of its benefits. How promptly and in what circumstances was application made? What were reasons for delay? Was respondent kept informed? Any negotiations before or after expiry of the time limit? Has estate been distributed before claim made or notified? Would a refusal to extend time leave the claimant without redress against anybody?

56.

In practice, the merits will always be taken into account and are often considered decisive.

57.

In Chittock v Stevens [2000] 1 WTLR 643, C was late by 3 or 4 months having discovered the estate to be worth £250k+ not £30k as previously thought. The application was allowed: Claim properly arguable. C had made a conscious decision not to apply for rectification (normally fatal: Escritt v Escritt [1982] 3 FLR 280) but C’s decision had been based on an assumption (common to all parties) that estate worth very little. Matters could have proceeded faster between April and July, but this delay was only a minor factor. Estate had not been distributed.

58.

In McNulty v. McNulty [2002] WTLR 357, when representation was taken out the IR account disclosed nil estate. 2¾ years before C realised estate had any value but did not issue for a further 10 months (“inexcusable tardiness” due to “relaxed and leisurely approach” ). Again the application was allowed. Time limit not a disciplinary provision to be enforced for its own sake. Main purpose is to provide a measure of protection to PRs and a measure of certainty to beneficiaries, by enabling estate to be distributed once 6-month period has elapsed. Good claim. Reasonable not to act until June 1998. Inexcusable tardiness thereafter did not cause prejudice. Estate had not been distributed.

59.

Obvious human rights issue in the refusal of an extension. ECHR Art. 6(1): In the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time. Inherent in Art. 6(1) is an implied right of access to the courts. The court will read in or imply Convention rights into broad statutory discretions. Is the starting point that access should be granted unless there is a good reason to the contrary?

Index

Non-compliance

60.

See Parnall v Hurst [2003] WTLR 987, where Ds applied to strike out the claim for breaches of the rules and practice directions and/or as being an abuse of process. C sought relief from sanctions. NB: Failure to comply with CPR r 8.5 (serve evidence with the claim form) and a breach of paragraph 4 of the Practice Direction - Protocols in that C did not act reasonably in exchanging information before proceedings were commenced. An offer of settlement was made on C’s behalf although she had at the time of the offer provided no financial information. Also caveat issued, delay in service of proceedings until almost the end of the 4-month period, service of particulars of claim (in a Part 8 claim), failure to serve the witness statement until many months after it had been signed. Held: To strike out the claim would be a drastic remedy for the breach which had been established. If the Court could deal justly with the case by the imposition of some penalty less than striking out the claim, it should do so. The claim had merit. The court should be reluctant to dispose of a claim such as this at an early stage and without a substantive hearing. Not wholesale disregard or repeated breaches of rules. The real fault lay with the solicitors. Relief from sanction imposed by CPR r.8.6 (i.e. permission to rely on witness statement not served with the claim form) granted with costs sanctions.

James Holmes-Milner