Jalal Abdulkader Algeilani v Wafaa Mustapha Ahmed El Samawi
| Jurisdiction | England & Wales |
| Judge | Lord Justice Birss,Lord Justice Arnold,Lord Justice Henderson |
| Judgment Date | 05 July 2021 |
| Neutral Citation | [2021] EWCA Civ 997 |
| Docket Number | Case No: A3/2020/0761 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 997
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BUSINESS AND PROPERTY COURTS OF ENGLAND AND
WALES, PROPERTY TRUST & PROBATE LIST (ChD)
Claim No. PT-2019-000706
His Honour Judge Rawlings
12th March 2020
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Henderson
Lord Justice Arnold
and
Lord Justice Birss
Case No: A3/2020/0761
Alper Riza QC for the Appellant
John McKendrick QC for the Respondent
Hearing dates: Thursday 17th June 2021
Judgment Approved by the court for handing down (subject to editorial corrections)
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This is an appeal about costs only. In the end it is a short point, but it bears some explanation. The point arises from an order made on 12 th March 2020 by HHJ Rawlings sitting in the High Court in the Property Trusts and Probate List (ChD) of the Business and Property Courts of England and Wales. The order was made in proceedings concerning the burial of Dr Abdulkader Al Geilani who died in Charing Cross Hospital in London on 18 th August 2019. The claimant was the only son of the deceased and the defendant was the third wife of the deceased. The claimant wished for the burial to take place in the Kingdom of Saudi Arabia and the defendant wanted the burial to take place in London.
The deceased had been a doctor. He was born in Yemen. He worked in the UK from 1963 to 1981 and thereafter returned to Saudi Arabia and remained there until January 2019, shortly before his death. He had a number of children, now living in various places. In 2004 he married the defendant and they had two children together. They moved to London in January 2019. When he died the deceased had a Saudi Arabian passport.
Proceedings began with a pre-action application dated 27 th August 2019 by the claimant for an injunction preventing the defendant from giving any direction as to the disposal of the body. On that day Norris J made an interim order by consent of both parties. The effect of the order was that neither side would give such directions pending trial.
The Claim Form and Particulars of Claim put the claimant's case on two bases: first the claimant asked the court for an order appointing him as administrator under s116 of the Senior Courts Act 1981, such grant being limited to dealing with the disposal of the body; and second the claimant sought an order under the inherent jurisdiction that he should be responsible for the burial. The defendant's Defence denied that there were proper grounds for making the claim on either basis and contended that the deceased should be buried in London as soon as possible. The pleadings contain a number of other allegations including claims of fraud and forgery.
Both the Particulars of Claim and Defence were settled by counsel. Inexplicably there was no reference in the pleadings to the domicile of the deceased when he died. In a case like this, that was an obvious matter which could and should have been addressed from the outset.
Cases of this sort are sensitive in nature and are urgent. As Hale J noted in Buchanan v Milton [1999] EWHC B9 (Fam) [1999] 2 FLR 844, these disputes delay the proper disposal of the body and the normal processes of grieving, while bringing further grief in themselves. The extended process of this dispute has clearly caused real distress to both the claimant and the defendant and to other members of the family of the deceased.
Unsurprisingly an expedited trial was ordered. This order was made by Falk J on 25 th October with the trial to be on the first open date after 25 th November 2019.
There were various procedural disputes which do not now matter. The case came before HHJ Rawlings on 12 th December 2019. It is clear that the judge was trying his best to have the matter resolved as speedily and sensitively as he could. His order of 12 th December makes provision for certain late filed witness statements to be admitted but not certain other material. It records the parties' agreement, no doubt instigated by the judge, that the matter would be resolved on paper and without cross-examination of witnesses. As the judge recorded in his later judgment (paragraph 20–23), he did not feel he had had sufficient assistance on the law in the skeleton arguments filed for the hearing and so gave directions for further written submissions. In that order the court sensibly requested (but did not require) submissions on certain aspects of the case under s116 of the 1981 Act and its interaction with the inherent jurisdiction. One submission by counsel for the appellant before us was that in doing this the judge was railroading the parties. To the contrary, the order does no such thing.
Written submissions and submissions in reply were filed and served starting on 20 th December 2019 and into January 2020. The last submission was provided on the 8 th or 9 th January 2020. Within the written submissions and amongst other things, there was a dispute about the domicile of the deceased. The claimant contended the deceased was domiciled in Saudi Arabia when he died and the defendant contended he was domiciled in the UK. However the submissions did not link the outcome of that dispute to the question of the court's powers.
Aspects of the law relating to the court's powers to resolve disputes about burial are not as clear as they could be, but for reasons explained below, I believe it is neither necessary nor desirable for this judgment to attempt to resolve those issues. Nevertheless it is relevant to see how the matter developed before the judge. One way in which the case was presented was to start from Rule 22 of the Non-Contentious Probate Rules 1987. That rule specifies the order of priority for grant in case of intestacy. By that rule, a surviving spouse has a higher priority than the children of the deceased (r22(1)(a) and (b)). Thus on the face of it the defendant had a higher priority than the claimant. Section 116 of the 1981 Act provides:
(1) If by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who but for this section would in accordance with probate rules have been entitled to the grant the court may in its discretion appoint as administrator such person as it thinks expedient.
(2) Any grant of administration under this section may be limited in any way the court thinks fit.
Thus the section gives the High Court power to appoint the claimant as administrator despite the higher priority of the defendant, however to do so would on the face of the section require special circumstances. The claimant submitted there were special circumstances in the present case but also contended that there was no such limit on the court's powers under the inherent jurisdiction. Thus as presented to the judge there was a crucial difference between the s116 approach and the inherent jurisdiction.
On 27 th January 2020 the judge sent his draft reserved judgment to the parties. The judgment is lengthy and detailed. Amongst other things the judge resolved the dispute about domicile, finding that the deceased was domiciled in Saudi Arabia when he died. Corrections and comments were provided and a second version of the judgment was sent to the parties on 7 th February 2020. The judgment addresses Rule 22, s116 and the inherent jurisdiction and concludes that the inherent jurisdiction has no application in the case because it is one involving competing priorities under Rule 22. Then, having considered the evidence in depth, the judge held that there were no such special circumstances under s116 and no reason to alter the priority. Thus the conclusion was in favour of the defendant.
On 14 th February 2020 the claimant's new counsel Mr Riza QC, who had not appeared before 20 th December 2019, sent draft grounds of appeal to the judge in support of the claimant's application for permission to appeal. These grounds raised a new point. The new point was that Rule 28(2) of the Non-Contentious Probate Rules disapplies Rule 22 in a case when the deceased is domiciled outside England and Wales.
Exercising the jurisdiction which was recognised in the Supreme Court in Re L and B [2013] UKSC 8, the judge decided to reconsider his judgment. He gave the defendant the opportunity to respond to the Rule 28 point. Counsel for the defendant's submission was to point out that by Rule 28(2) on its face the disapplication of Rule 22 does not apply if Rule 30(3) applies, and to submit that Rule 30(3) does apply on the facts of this case. These rules provide as follows:
“28. — Exceptions to rules as to priority
(1) Any person to whom a grant may or is required to be made under any enactment shall not be prevented from obtaining such a grant notwithstanding the operation of rules 20, 22, 25 or 27.
(2) Where the deceased died domiciled outside England and Wales rules 20, 22, 25 or 27 shall not apply except in a case to which paragraph (3) of rule 30 applies.
30. — Grants where deceased died domiciled outside England and Wales
(1) Subject to paragraph (3) below, where the deceased died domiciled outside England and Wales, a district judge or registrar may order that a grant, limited in such way as the district judge or registrar may direct, do issue to any of the following persons–
(a) to the person entrusted...
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