Julie Dawn Colbourne v Simon Mark Cooke
| Jurisdiction | England & Wales |
| Judge | Phillips |
| Judgment Date | 25 November 2022 |
| Neutral Citation | [2022] EWHC 3029 (Ch) |
| Docket Number | Case No: PT-2022-BHM-000054 |
| Court | Chancery Division |
[2022] EWHC 3029 (Ch)
District Judge Chloë Phillips
Case No: PT-2022-BHM-000054
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
IN THE MATTER OF THE ESTATE OF CHRISTINE BARBARA COLLIER-WHITE
AND IN THE MATTER OF THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975
Birmingham Civil and Family Justice Centre
33 Bull Street
Birmingham B4 6DS
James Stewart Rudall (instructed by Silks Solicitors) for the Applicant
Gavin McLeod (instructed by MFG Solicitors) for the Respondents
Hearing dates: 20 September 2022
The hearing on 20 September was listed to deal with an application made by Ms Colbourne, (“the applicant”) for permission to bring her Inheritance Act claim out of time. The 1st and 2nd respondents are partners in MFG Solicitors and are the personal representatives of the Estate of the applicant's late mother Christine Barbara Collier-White (“the deceased”). The 3rd respondent, Ms Collier-White, is the residuary beneficiary under the deceased's last Will.
The first and second respondents as personal representatives of the Estate take a neutral stance in relation to this application and I therefore refer to the 3rd respondent, Ms Collier-White, who actively opposes the application, as “the respondent”.
At the hearing the applicant and respondent have been represented by counsel – Mr Rudall for the applicant and Mr McLeod for the respondent. The court was provided with a bundle of relevant documents and an authorities bundle. Both counsel provided skeleton arguments for the hearing.
The Application
The applicant's application notice dated 13 May 2022 applies for “ permission for the claimant to bring their Inheritance Act claim out of time” and states “ The period to bring the claim ended on 20 March 2022.” The application is supported by a witness statement of Omar Mahmoud (the applicant's solicitor) of the same date which exhibits an unsealed Part 8 Claim Form and a witness statement of the applicant dated 12 May 2022, with exhibits.
The respondent has filed a witness statement from Andrew James Chandler of MFG solicitors dated 15 August 2022. The respondent opposes the application for an extension of time.
The relevant chronology is as follows:
April 2018 – the deceased's husband of 55 years died.
July 2018 – the deceased became engaged to the respondent
September 2018 – the deceased executed her last Will
December 2018 – the deceased married the respondent
January 2019 – the deceased died
September 2021 — the executors obtained a grant of probate in respect of the deceased's estate
March 2022 – 6 months limitation period for Inheritance Act claim
May 2022 – Application for extension of time for Inheritance Act claim.
Law
Section 4 of The Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”) provides:
“ An application for an order under section 2 of this Act shall not, except with the permission of the court, be made after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out (but nothing prevents the making of an application before such representation is first taken out)”.
The grant of probate in respect of the deceased's Will was extracted on 20 September 2021 and therefore the six-month period expired on 20 March 2022. In the circumstances the applicant requires the court's permission to make her application for an order under section 2 of the Inheritance Act.
Section 20(1)(a) of the Inheritance Act provides:
( 1) The provisions of this Act shall not render the personal representative of a deceased person liable for having distributed any part of the estate of the deceased, after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out, on the ground that he ought to have taken into account the possibility—
(a) that the court might permit the making of an application for an order under section 2 of this Act after the end of that period, or
(b) that, where an order has been made under the said section 2, the court might exercise in relation thereto the powers conferred on it by section 6 of this Act,
but this subsection shall not prejudice any power to recover, by reason of the making of an order under this Act, any part of the estate so distributed.
Mr McLeod for the respondent raised the issue of whether the court has jurisdiction to deal with this application for the first time in his skeleton argument for the hearing – it was not previously raised in the respondent's witness statement in response to the application. Mr Rudall for the applicant was able to respond to this point in his submissions.
Jurisdiction
At the hearing, Mr McLeod for the respondent asked the court to deal with jurisdiction as a preliminary matter, submitting that the court does not have jurisdiction because the application for permission has not been made in the correct way – the claim form has not yet been issued and he submits that the court “ is not seised of its ordinary jurisdiction under the Act”. He submits it is for the applicant to satisfy the court in relation to jurisdiction. He accepted, however, that he could not say that the court definitely does not have jurisdiction but submitted that the court should not exercise any jurisdiction that it may have speculatively or on assumed premises.
Mr McLeod referred the court to the Practice Direction issued in 1976 – Practice Note: Chancery Division: Commencement of Proceedings (Family Provision) [1976] 1 WLR 418 which makes it clear that where an applicant asks the court to exercise its discretion under section 4 to extend time, “ such relief should be expressly asked for in the originating summons and the grounds on which the court's leave to entertain the application is sought should be included in the supporting affidavit”.
Mr McLeod also referred to academic authorities including Williams, Mortimer and Sunnucks – Executors, Administrators and Probate which sets out the authors' view (citing the Practice Direction) that relief should be asked for in the claim form and Francis, Inheritance Act Claims, which states that applications for permission must be made in the statement on the claim form. Submissions were also made that an application to extend time under s.4 is not an interim remedy covered by the provisions of CPR r.25.1(4) and r.25.2(1).
In response, Mr Rudall for the applicant submits that there is no legal basis for saying that an application for permission cannot be made by way of an application notice prior to formal issuing of a claim form and that it can only be made by way of the claim form, and he asserts that there is authority for the court to make such an order inherently under section 4 of the Act. Mr Rudall referred the court to dicta in the Court of Appeal case Begum v Ahmed [2019] EWCA Civ 1794 in which Lord Justice Floyd, at paragraph 13 stated: “ The Act, as has been observed more than once, gives an unfettered discretion to the court to extend the time. It gives no express guidance on how the discretion is to be exercised, but it is a discretion which must be exercised in accordance with its statutory purpose and context.”
Counsel agree that in all the cases they have come across the application has been made in the issued claim form including a request for an extension, and therefore the present application is unusual.
I take the view that whilst the applicant has not complied with the 1976 Practice Direction and has not proceeded in the way proposed by the academic texts dealing with such applications, there is no legal authority that I am aware of which prevents the issued application for an extension being considered by the court simply because the claim form has not yet been issued.
The respondent submitted that the court should decline to exercise jurisdiction, for reasons set out in some detail in Mr McLeod's skeleton argument, which I have considered, including his observations on the interpretation of Lady Justice Asplin's comments in Cowan v Foreman [2019] EWCA Civ 1336; [2020] Fam.129.
The wording of Section 4 of the Inheritance Act does not prescribe how the application must be made. The Court of Appeal dicta in Begum (supra), refers to the court's unfettered discretion, which can be interpreted to mean unfettered by the manner in which the application is brought to court. The respondent's argument that the court should not exercise its discretion in circumstances where its jurisdiction to do so is in doubt amounts to a fetter on that discretion.
I also take into account the fact that the application was issued by the court and was then listed to be heard by the Order of District Judge Singh dated 13 May 2022 which also ordered that the respondents should file and serve any evidence in response at least 21 days before the hearing. No jurisdictional issue or objection was raised by the respondent in the evidence in response.
It is also relevant to consider the overriding objective of the Civil Procedure Rules to deal with cases justly and at proportionate cost. I do not consider that the respondent suffers any prejudice as a result of the fact that this application has been made prior to the formal issuing of the claim form: the respondent has had sight of the intended claim form and supporting witness statement as they are attached to the application notice, and the respondent has had the opportunity to provide evidence in response. A decision not to deal with the application...
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