Gayle and Another v Gayle and Others
| Jurisdiction | England & Wales |
| Judge | Mr S. Monty |
| Judgment Date | 22 June 2016 |
| Neutral Citation | [2016] EWHC 2587 (Ch) |
| Docket Number | Case No: CH-2016-000046 |
| Court | Chancery Division |
| Date | 22 June 2016 |
2016 EWHC 2587 (CH)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Rolls Building,
7 Rolls Building, Fetter Lane, London,
EC4A 1NL
Mr S Monty, QC
(Sitting as a Deputy High Court Judge)
Case No: CH-2016-000046
The Applicant appeared in person
Mr J MacDougald appeared on behalf of the Respondents
Mr S. Monty QC:
This is an appeal from the order of Master Teverson dated 9 February 2016 by which the Master ordered that the First and Second Defendants be removed as administrators of the estate of Borsie Gayle deceased (the estate is the Fourth Defendant) and appointed an independent professional administrator in their place. The hearing before Master Teverson was pursuant to Part 8 proceedings which were issued by the Claimants on 12 August 2015 for the removal and replacement of the First and Second Defendants as administrators.
The background to that application is as follows. The parties are (subject to one point which I ought to mention in due course) the adult children of Mr Borsie Gayle, who died intestate on 15 October 2003. Mr Boisil Gayle, whose estate is named as the Fifth Defendant, died in 2012. His son, Damien, who is resident in the United States, has been notified of the proceedings. At the time of the deceased's death the estate comprised the deceased's half share of the family home at 147 Upper Brockley Road ("the property"). The other half of the property was owned by the deceased's brother, Mr Ralph Gayle. Mr Ralph Gayle died in 2007, and his daughter and personal representative applied for an order for sale of the property to realise Mr Ralph Gayle's share.
On 19 April 2010 HHJ Atkinson, sitting at Bromley County Court, made an order for sale of the property and appointed a Mr Stuart Hunter, as solicitor, as trustee of the property, together with Mr Ralph Gayle's daughter, to effect its sale. The judge further ordered that the net proceeds of sale of Borsie's half share after deduction of fees and expenses including a charge in favour of Borsie's ex-wife, Mrs Lali Gayle, be paid into court. In December 2010 the First and Second Defendants moved into the property and continued to reside there until July 2013. On 11 October 2011 the First and Second Defendants took a grant of administration of Borsie's estate. There was further litigation in respect of a claim for possession of the property between 2011 and 2013 which culminated when the property was finally sold on 22 November 2013 and the proceeds of sale were paid into court. The amount currently held in court is just over £202,000.
By that same order of 9 February 2016, Master Teverson further ordered that the Claimants should put forward the names of two independent professionals with experience of estate administration work by 17 February 2016; by 24 February 2016 the Defendants should notify any objections; and by 26 February 2016 the Claimants should notify the court of the names and whether they were agreed and upon being appointed the new administrators were to administer the deceased's estate. The Master also gave further directions in relation to dealings with monies in the estate and ordered that the Claimants' costs be paid by the First and Second Defendants.
The Claimants duly put forward two names but on 23 February 2016 the First and Second Defendants rejected them both without giving reasons. The Master's order had provided that any objections should relate only to the candidates' independence and/or professional qualification and should not be unreasonable. Instead the First and Second Defendants stated that they intended to appeal the Master's order. On 3 March 2016 the First and Second Defendants filed an appellant's notice. It was two days out of time because the 21-day period for filing an appellant's notice expired on 1 March. The appellant's notice stated:
"I apply for an extension of time due to the fact I had to go to Jamaica on 16 February 2016 for a funeral which was a close member of the family. I returned back to the UK on 24 February 2016."
On 21 March 2016 Nugee J granted an extension of time to bring the appeal out of time, giving his reasons first that the order of the Master was not served until 15 February, and second that the First Defendant was abroad between 16 and 24 February. In those circumstances the learned Judge decided that a short extension to 3 March was reasonable. However, the Claimants made an application on 1 April 2016 noting that the appellants were granted permission to bring the appeal out of time, referring to the reason given in the appellant's notice, and saying that the respondents categorically state that there was no funeral of any close family member between 16 and 24 February 2016. The respondents therefore requested that the order be varied to require the appellants to file and serve documentary evidence of the death and funeral of the close family member and evidence as to the nature of the relationship to the deceased as well as the other evidence set out in paragraph 3 of the learned Judge's order when the appeal bundle was filed. A draft order was attached to that effect which also, I note at paragraph 2, sought an order for costs in case.
On that application Nugee J, on 12 April 2016, set aside his earlier order, thereby going further than the application of 1 April had requested, and directed that the question of an extension of time for bringing the appeal would be considered afresh at the same time as the court considered the question of permission to appeal. Today is that hearing. Nugee J also directed that this would not be the hearing of the appeal but solely of the two applications for an extension and for permission. Nugee J did order that the First and Second Defendants must include in the appeal bundle any documentary evidence on which they intended to rely in relation to the extension of time including evidence of the death and funeral of the close family member and of the nature of the relationship with the Claimants. I should note at this point that on 7 April 2016 Deputy Master Lloyd appointed Susan Grant, a solicitor, to administer the estate against the background of matters which followed Master Teverson's order, which I will be outlining.
In a witness statement of the First Defendant dated 22 April 2016 he says that, "On 3 February 2016 a member of our family by the name of Roy Williams died unexpectedly in Jamaica". He goes on to explain that Mr Williams had worked in various capacities for the family, and he produced first the flight details for his trip to Jamaica and secondly a notice of the thanksgiving service for Mr Williams which took place on 21 February in Jamaica. It seems to me to be clear that the First Defendant was abroad in Jamaica between 16 and 24 February. I note that there is no evidence put forward as to why nothing was done between his return on 24 February and 1 March to get this appeal in on time and the witness statement does not state what the relationship is between the First and Second Defendants and Mr Williams, although Mr Gayle (who has appeared before me today in person) tells me that Mr Williams is his father's third cousin.
The court has jurisdiction to extend time retrospectively under CPR 52.6. That rule refers to the power under CPR 3.1(2)(a) to extend or shorten the time for compliance with any rule, practice direction or order even if the application is made after the time for compliance is expired. A failure to bring an appeal in time means that the appeal cannot proceed. The rule states that the appellant "must" file the notice of appeal in time. It follows that this present application to extend time engages CPR 3.9, which sets out the basis upon which the court will grant relief from sanction. I must therefore apply the three-stage test in Denton v TH White [2014] 1 WLR 3926.
(1) Was the breach serious or significant? The filing of a notice of appeal in time is a requirement of bringing an appeal and, unless complied with (subject to any extension the court mat grant), the appeal cannot proceed. It is clearly therefore a significant breach because of its result, although two days is at the lower end of the scale.
(2) What was the reason for the breach? I noted the reason advanced by the First Defendant and that there was no evidence as to why nothing was done in the period after his return; nor was there any explanation why the Second Defendant could not have filed the notice of appeal in the First Defendant's absence. I have concluded that in those circumstances no good reason has been put forward for the breach, but that is however not an end to the matter.
(3) All the circumstances of the case. In considering all the circumstances of the case, the court must give particular weight to the two factors set out at CPR 3.9(1)(a) and (b), namely (a) the need for litigation to...
To continue reading
Request your trial