Karen Pegler v Timothy Bruce McDonald
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 01 August 2022 |
| Neutral Citation | [2022] EWHC 2069 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: PT-2021-BRS-000049 |
In the Estate of Clive McDonald (Deceased)
And in the Matter of S116 Senior Courts Act 1981 and S50 Administration of Justice Act 1985
[2022] EWHC 2069 (Ch)
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: PT-2021-BRS-000049
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURT IN BRISTOL
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
Ashfords LLP, solicitors for the Claimants
The First Defendant in person
The Second Defendant took no part in the applications
Applications decided on paper
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment will be handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 11:00 am on Monday 1 August 2022.
Introduction
In an email to the court on 27 July 2022, the first defendant sought an adjournment of the trial of this claim, currently listed for hearing on 14 September 2022. He puts forward three grounds. The first is that he says that on 26 July 2022 he unfortunately contracted pleurisy. He further says that the recovery period is two weeks. The second ground advanced is “to give senior police and senior lawyer firms in several counties, and even countries, more time to consider the evidence that the [present] claim to depose me as executor is effectively a scam…” The third ground is that this “allows me to brief a senior barrister – if ever needed”.
In addition to that, on 3 February 2022, the first defendant applied by notice for a Beddoe order. As I understand the matter this application has not been dealt with up until now, because of the existence of a pending application for permission to appeal by the first defendant against a decision of DJ Watkins on 1 October 2021. That application has now been resolved, and the application for Beddoe relief can accordingly be dealt with. My order deals with both applications, and these are my reasons for that order.
Background
The present claim was issued on 13 May 2021 by claim form under CPR Part 8, supported by a witness statement from the first claimant dated the same day. It seeks the passing over or removal of the defendants as personal representatives of the estate of Clive McDonald deceased. They (and another person who has renounced) were named as executors by the deceased's will of 24 September 2020. He died on 30 September 2020. The claimants are beneficiaries under the will.
However, the defendants have not applied for probate of the will. Indeed, the first defendant entered a caveat, which he has refused to remove. The original second defendant was a professional executor, who indicated that she no longer wished to be involved in the estate. Her acknowledgement of service indicated she did not intend to contest the claim. Indeed, she made a witness statement in support of the application to remove herself and the first defendant as personal representatives.
Because the first defendant is resident in Canada, on 14 May 2021 the claimants applied for permission to serve the claim form on the first defendant out of the jurisdiction. At the same time they sent the claim documents to the first defendant by email, and he agreed to accept service by this method. On 7 June 2021, DJ Watkins gave permission to the claimants so to serve the claim form. The first defendant's acknowledgment of service bears the date 31 May 2021, and the email sending it is dated 1 June 2021, though the court file says it was filed only on 10 June 2021. I expect that the pressure of work explains the delay. But nothing turns on this.
The first defendant's first witness statement is dated 6 June 2021. His second (dated 24 June 2021) was sent to the court on 28 June 2021, along with a number of other documents. On 12 August 2021 the first defendant sent to the court a third witness statement, once more together with a number of other documents. He made a further witness statement concerning the order of 1 October 2021 (see below) on 18 October 2021.
On 1 October 2021, DJ Watkins made an order substituting Hugh James Trust Corporation for the second defendant, and giving directions to trial, “on the first available date after 13 December 2021, with a time estimate of 1 day and 2 hours pre-reading time”. This was subsequently listed for Friday 11 February 2022.
On 12 October 2021, the first defendant wrote to the court and to the office of the Attorney General to report what he considered to be an apparent contempt of court by the claimants' solicitors, in recording the hearing on 1 October 2021. (The claimants' solicitors have denied doing so.) On 29 October 2021 the first defendant lodged a notice of appeal against the order of 1 October 2021 in relation to the removal of the second defendant and the substitution of Hugh James Trust Corporation.
On 18 November 2021, the first defendant applied for an injunction against Hugh James Trust Corporation, in effect seeking “ to reverse the decision made by Judge Myles Watkins in his October 1 Court Order (received October 15) to appoint Mathew Evans of the Cardiff law firm Hugh James as replacement for the willing-to-be deposed local Sussex executor, Warwick Barker LLP's Gill Collins”.
On 24 November 2021, the court wrote to the first defendant with my comments as follows:
“Please tell the applicant that, in circumstances where he is seeking to appeal the appointment of Hugh James as substitute personal representative, an application for an injunction is duplicative and an abuse of process. If he has concerns about actions being taken in the short term which would prejudice him, he should seek an undertaking from appropriate parties that no such action will be taken before the appeal is dealt with, and if no such undertaking is given apply for a stay of execution of the order of the district judge pending the disposal of the appeal.”
On 26 November 2021 the first defendant wrote by email to other parties, referring to my comments, as follows:
“The request to you is that until my appeal of the BRS October 1 court order re the subject claim is heard, HJCT refrain from any and all further action in their new capacity as PRs for the Estate of my brother Clive Angus McDonald …”
with certain limited exceptions.
On 10 December 2021, the first defendant made an application by notice (dated 8 December) for a stay of execution of the order of DJ Watkins dated 1 October 2021, pending the outcome of his appeal. On 7 January and then on 20 January 2022 he chased this application. I cannot see from the file that this was ever dealt with. However, DJ Taylor appears to have considered that he had (on 4 February 2022) stayed the proceedings pending the first defendant's appeal, and that may explain why nothing then happened.
On 3 February 2022, the first defendant applied by notice for a Beddoe order. It is not clear whether this notice was ever served on the claimants. On 4 February 2022, DJ Taylor of his own motion vacated the hearing listed for 11 February 2022, on the basis of the outstanding application for permission to appeal made by the first defendant. On 7 February the claimants' solicitors wrote to the court to complain about the decision to vacate the hearing of 11 February 2022, on the basis that the directions of 4 February were not available to the parties, nor on CE-File, and the matter under appeal was distinct from the matters to be resolved at the trial. (The order of 4 February was sealed and filed only on 9 February 2022.) It appears that the court never replied to the letter of 7 February. I do not know why. It may simply have been overlooked because of the pressure of work that court staff are under.
On 15 February 2022, the first defendant wrote to the court chasing up on his earlier report of possible contempt of court. This was referred to me on 24 February 2022, and I responded the same day, although my response was not sent out to the first defendant until 17 March 2022. That response was:
“Please tell Mr McDonald that the court does not investigate possible contempts of court (other than in the face of the court). If he wishes to complain about a judge's decision as being wrong, he should seek to appeal that decision. If he wishes to complain about a judge's behaviour (other than in making a decision) he should complain to the JCIO (https://www.judiciary.uk/related-offices-and-bodies/judicial-conduct-investigations-office/). If he wishes to institute proceedings for contempt of court, he should follow the procedure in CPR Part 81 (https://www.justice.gov.uk/courts/procedure-rules/civil/rules#part81).
On the same day the court also sent out a letter to the first defendant in response to his Beddoe application of 3 February. This had been referred to DJ Taylor, who had commented on 21 February that the application could not be dealt with until the appeal had been dealt with. The delays involved in processing paperwork are attributable to the pressure of work on the court staff, but are nevertheless regrettable.
On 20 March 2022 the first defendant, having received my response of 24 February 2022 (in the email of 17 March), wrote to the court again to complain that his contempt of court report was not being dealt with. In part he said:
“I will mention that I have not found the link to the CPR rules part 81 helpful as the link shows that part as having been revoked.”
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Karen Pegler v Timothy Bruce McDonald
...Matthews HHJ Introduction 1 On 1 August 2022, I handed down my judgment on two applications by the first defendant in this claim: see [2022] EWHC 2069 (Ch). The claim itself is for the removal of the first defendant as an executor of his late brother's will, by beneficiaries under that wil......
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Karen Pegler v Timothy Bruce McDonald
...Matthews HHJ Introduction 1 On 1 August 2022, I handed down my judgment on two applications by the first defendant in this claim: see [2022] EWHC 2069 (Ch). The claim itself is for the removal of the first defendant as an executor of his late brother's will, by beneficiaries under that wil......
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Karen Pegler v Timothy Bruce McDonald
...2 I have already given two interlocutory judgments in this matter. The first was handed down on 1 August 2022 (neutral citation [2022] EWHC 2069 (Ch)), concerning applications by the defendant for an adjournment of the trial and for a Beddoe order. The second was handed down on 6 September......