Caudle v L D Law Ltd

Approved Judgment

Hearing dates : 20 February 2008

direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgmentthat copies of this version as handed down may be treated as authentic.

1. By a Claim Form issued on 22 May 2007 Mr. Anthony Caudle, the Claimant, commenced proceedings against LD Law Ltd, the Defendant, in which he claimed relief in the following terms:

“The Claimant is a qualifying person entitled to make an application for the grant of Letters of Administration of the estate of Late Sarah Caudle. The Defendant has in its possession documents necessary for the proper administration of the said estate, believed to include the death certificate, funeral account, bank statements, building society passbooks, credit cards statements, wage slips with tax reference, utilityother bills,documents relating to insurance policies, pension planother assets. The Defendant has wrongly retained the said documentsconverted them to its own usethe Claimant seeks an Order for the delivery up of the said documentssuch other property of the estate as in the Defendant's position or control.”

2. On 8 June 2007 His Honour Judge Riddell, sitting in the Edmonton County Court, heard an application with two limbs made by the Claimant. The first limb of the application was for a declaration that the Defendant had no lien over the documents in its possessionwhich were particularised both in the Claim Formmore specifically in the Skeleton Argument produced on behalf of the Claimant. The second limb was for an order that the Defendant should deliver up those documents to the Claimant's solicitors. The Learned Judge acceded to the claim for the declaration but he refused to make an order for delivery of the documents in question. Rather, he dismissed the claim for delivery up of those documents. Additionally the Judge ordered the Claimant to pay to the Defendant costs which he assessed in the sum of £2,700.

3. The Claimant, hereinafter referred to as the Appellant, appeals to this Court with the permission of Burton J against those parts of the order of the learned Judge which were adverse to him. It is common ground, however, that the appeal on the issue of costs can succeed only if the substantive appeal succeeds.

4. The relevant background is as follows. The AppellantSarah Caudle deceased had, for a period of time, been married. One child, Adam, was born to the Deceased during the course of the marriage. In 1998 the AppellantDeceased separated and, subsequently, they divorced.

5. At least some aspects of the divorce were acrimonious. Further, as I understand it, there were contested hearings about the child Adam and, in particular, about where he should reside. On 9 January 2004 a Judge in Chelmsford County Court made an Order that he should reside with the Appellant.

6. The Deceased died on 26 January 2007. In her matrimonial proceedings against the Appellant and, indeed, possibly, in other forms of proceedings she had instructed the Respondent to act on her behalf. As its name implies LD Law Ltd is a company which provides legal services. At the date of her death the deceased was indebted to the Respondent in the sum of £1,633.90. That sum was owed in respect of legal work carried out on behalf of the Deceased and, as I understand it, the Respondent had obtained a judgment in respect of that debt.

7. Following the deceased's death her parents, MrMrs Camp, made an appointment to see Mr Michael Casson, a solicitorconsultant of the Respondent. At the appointment they brought with them various papers belonging to the Deceased's estate. The evidence is not precise about the nature of some of the documentation or how it came to be in the possession of Mr.Mrs. Camp but it is common ground that I should proceed on the basis that the vast majority of the papers, at least, relate to the deceased's financial affairsthat they came into existence prior to her death. The papers were delivered to Mr Casson because MrMrs Camp wished him to act for them in obtaining letters of administration to the estate of the Deceased.

8. The Deceased died intestate. Adam, her son, is her sole beneficiary. The persons entitled to apply for letters of administration are those set out in the Non-Contentious Probate Rules 1987. Mr.Mrs Camp are persons entitled to apply but, as will become clear, they are not the first persons so entitled in order of priority.

9. Following the appointment with MrMrs Camp, Mr Casson set about carrying out work with a view to applying for letters of administration. Before his work was completed, however, the Appellant made contact with him. It suffices that I say that the Appellant probably asserted that he was entitled to apply for letters of administration.

10. On 28 March 2007 Mr Casson wrote to the Appellant. The material parts of the letter read: “I write to advise that together with assistance from the Probate Registry, I have reviewed who may apply for Letters of Administration to Sarah's Estatethe position appears to be this. Firstly we are agreed that Adam is the sole beneficiary of the Estate, but as he is not yet of the age of 18, it would be yourself who, as the person with parental responsibility for Adam, will need to apply. However, because Adam is under 18, at least two administrators will be neededthe second administrator should be the next permitted representative, who will be one of Sarah's parents.

Having made preliminary enquiries, I am in a position to apply for a Grant of Letters of Administrationalso to market the property at 190 Hollifield. I should be grateful if you will confirm that you consent to act as administratorI will then send you the appropriate documentation, including the draft Oathcopies of the draft account on the basis of the information received.

……………

If, however, you do not wish to act as Sarah's administrator, please confirm the position to us, as it may, in those circumstances, be necessary to apply for an Order that MrMrs Camp continue to make application for the Grant of Letters of Administration.”

11. On 12 April 2007 solicitors instructed by the Appellant replied. They asserted that the Appellant was the only person entitled to apply for a grant of letters of administration, that he intended to apply for a grantask a partner of the firm of solicitors who acted for him to act as second administrator and, that being so, they asked the Respondent to deliver to them the papers which had been delivered by MrMrs Camp to the Respondent so as to enable them to begin the process of applying for letters of administration.

12. In fact, as I have said, the Appellant was not the only person entitled to apply for letters of administration. MrMrs Camp were also entitled to apply. However under the 1987 Rules the Appellant's entitlement to a grant had priority over the entitlement of MrMrs Camp.

13. The Respondent's reply to the letter of 12 April was a letter of 19 April. It confirmed that the Respondent was in possession of “papers relating to the Estate” it asserted that the Respondent enjoyed a lien over the papers in respect of the unpaid judgment debt.

14. Between 19 April 2007the issue of these proceedings the Appellants’ solicitorsthe Respondent debated, in correspondence, the legal issues surrounding the Appellant's request for the papersthe Respondent's assertion of a lien. They also explored possible bases upon which the Respondent would be prepared to deliver the papers to the Appellant's solicitors.

15. It is also to be observed that during this period the Respondent did deliver to the Appellant's solicitors (or make arrangements for the delivery of) items of personal property which had been owned by the Deceased. They did that because they asserted no lien over such items and, presumably, because they believed that in the absence of a lien the Appellant was entitled to possession of the items.

16. As I have said these proceedings were issued on 22 May 2007. In fact the Appellant had issued an application for interim relief prior to that date. The application was due to be heard on 25 May 2007 but, in the event, it was not. On 24 May 2007 the Respondent wrote to the Appellant's solicitors. It indicated that one of the grounds upon which the application for interim relief would be opposed was that the Appellant “has no locus standi to make any Application on behalf of the deceased's estatewill not have any such locus until [he] had been granted Letters of Administration.” As I understand it, this was the first time that this point had been taken during the course of the correspondence between solicitors. Before the hearing on 8 June 2007 the parties put in evidenceexhibited the correspondence which had been generated between the solicitors.

17. At the conclusion of the hearing on 8 June 2007 the learned Judge gave a full, carefulreasoned judgment as to why it was that he was granting the Appellant a declaration that no lien existed over the papersalso why, nonetheless, he was refusing the application for delivery updismissing that aspect of the claim. It seems clear from the judgment that at the hearing the Respondent, through its Counsel, Mrs. Mahoney, defended the Appellant's application on the basis that it had a lien over the relevant papers with a distinct lack of enthusiasm. The Judge...