Karen Pegler v Timothy Bruce McDonald
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 06 September 2022 |
| Neutral Citation | [2022] EWHC 2288 (Ch) |
| Docket Number | Case No: PT-2021-BRS-000049 |
| Court | Chancery Division |
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 2288 (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 10:30 am on Tuesday 6 September 2022.
Introduction
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 will. One application was for an adjournment of the trial fixed for 14 September 2022. The other was for a Beddoe order. Both applications were dismissed, for the reasons given. In addition, I imposed an extended civil restraint order (“ECRO”) on the first defendant for two years. So far as I am aware, no application has been made for permission to appeal my decisions. Certainly, none has been made to me.
However, on 30 August 2022, the first defendant wrote to the court office by email, making an informal application for three alternative orders. The first was in effect for an order dismissing the claim. If the first were not granted, the second was for me to recuse myself from presiding at the trial. If the second were not granted, then the third was for the time of the trial on 14 September to be changed from 10:30 am to 2 pm. The second defendant is not concerned in this application, and has played no part in it. For ease of reference, in the rest of this judgment I refer to the first defendant as simply “the defendant”.
I note that the defendant has not applied in the proper form (N244). Nor has he paid the prescribed fee. Moreover, it did not appear from his email that the defendant had copied it to the other parties, as required by CPR rule 39.8. I therefore caused court staff to make that enquiry of the defendant, and it was sent to him by email on 1 September 2022. By close of business on 5 September there had been no reply from the defendant.
More significantly, the defendant does not appear to have complied with the procedural requirements of the ECRO to which he is subject, and in particular paragraphs 3-4-3-6 of CPR Practice Direction 3C. (I referred to this procedure expressly in paragraph 41 of my earlier judgment, so that he should be aware of it.) Accordingly, by virtue of paragraph 3.3, his informal application stands automatically dismissed.
Each of those three matters taken separately would be a good reason for stopping this ruling here. However, and exceptionally, given the proximity of the trial, the defendant's evident distrust of the English legal system, and of the judiciary in particular, and the need for the parties to know where there are in advance, I am going to put those matters on one side for now. I will deal with the substance of the three parts of the defendant's application in the same order as set out above, and explain why, in any event, I would not have given permission to the defendant to make his application.
Application for summary dismissal of the claim
Basis of application
In support of his application for the summary dismissal of the claim, the defendant has supplied a copy of my judgment of 1 August 2022, which he has heavily annotated with his comments, interleaved into the text. The scale of his annotations can be shown by the fact that, whereas my judgment as handed down comprised 27,500 characters, over 13 pages, the annotated version runs to 91,176 characters, over 37 pages. I do not set the annotations out here, for reasons of space. But I have read and taken account of all of them.
The defendant then says:
“The reasons for this [ ie the application to dismiss the claim] are spread throughout the attachment. Basically, I am the most qualified, honest and effective executor this estate could possibly have. The proof is that all my contacts except lawyers and Gahagans/Peglers are very happy with my efforts and this estate has been ready for probate for a year now, despite other executors' paranoid harassment and bullying. And so there is no call or room for yet another duplicative PR, particularly given that two of the Warwick Barker partners are still executors.
The only reason the Claimants want to remove me, despite my successes, is to hijack control of the Estate so they can deny me my patrimony claim. This Pegler claim is thereby effectively trying to pull off a scam.”
Applicable law
I can take the applicable law relating to the summary dismissal of claims from a recent judgment of my own, in Burford v AA Developments Ltd [2022] EWHC 368 (Ch):
“17. I turn now to consider the law. First of all, the relevant rules of procedure are CPR rule 3.4(2) and CPR rule 24.2. The former rule provides:
‘(2) The court may strike out a statement of case if it appears to the court—
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c) that there has been a failure to comply with a rule, practice direction or court order.’
18. In addition, CPR Practice Direction 3A relevantly provides:
‘1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
(1) those which set out no facts indicating what the claim is about, for example “Money owed £5,000”,
(2) those which are incoherent and make no sense,
(3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.
1.5 A claim may fall within rule 3.4(2)(b) where it is vexatious, scurrilous or obviously ill-founded.’
19. The latter rule provides:
‘The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if—
(a) it considers that—
(i) that claimant has no real prospect of succeeding on the claim or issue; or
(ii) that defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial.’
On an application for summary judgment, the burden of proof rests on the applicant: ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472, [9].
20. These two methods of summarily disposing of a claim without a trial are frequently combined in the same application … . But it is clear that an application under rule 3.4 is not one for summary judgment: see eg Dellal v Dellal [2015] EWHC 907 (Fam). It is generally concerned with matters of law or practice, rather than with the strength or weakness of the evidence. So on an application to strike out, the court usually approaches the question on the assumption (but it is only an assumption, for the sake of the argument) that the respondent will be able at the trial in due course to prove its factual allegations. On the other hand, on an application for summary judgment, the court is concerned to assess the strength of the case put forward: does the respondent's case get over the (low) threshold of ‘real prospect of success’? If it does not, then, unless there is some other compelling reason for a trial, the court will give summary judgment for the applicant. …”
In that judgment, I also set out a passage from the recent judgment of Coulson LJ on these two means of summary disposal (with which Bean and Males LJJ agreed) in Begum v Maran (UK) Ltd [2021] EWCA Civ 326, and I repeat that here:
“20. The Appellant's application before the judge sought an order pursuant to r.3.4(2)(a) that the particulars of claim disclosed ‘no reasonable grounds’ for bringing the claim and should be struck out and, in the alternative, a claim for summary judgment pursuant to r.24.2(a)(i) that the Respondent had no real prospect of succeeding on the claim. There can sometimes be procedural consequences if applications are made under the ‘wrong’ rule (which do not arise here) but, in a case like this (where the striking-out is based on the nature of the pleading, not a failure to comply with an order), there is no difference between the tests to be applied by the court under the two rules.
21. Accordingly, I do not agree with the judge's observation at [4] that somehow the test under r.24.2 is ‘less onerous from a defendant's perspective’. In a case of this kind, the rules should be taken together, and a common test applied. If a defendant is entitled to summary judgment because the claimant has no realistic prospect of success, then the statement of claim discloses no reasonable grounds for bringing the claim and should be struck out: see Global Asset Capital Inc v Aabar Block SARL [2017] EWCA Civ 37; [2017] 4 WLR 16 at [27].
22. As to the applicable test...
To continue reading
Request your trial
-
Flowers Development Company Ltd v The Bahamas Telecommunications Company Ltd
...31 . In recent commentary on this issue in the case of Re estate of McDonald (deceased); Pegler and others v McDonald and another [2022] EWHC 2288 (Ch) Paul Matthews (sitting as a High Court judge) 6 September 2022 observed that:- “47. … ‘Bias is an attitude of mind that prevents the judge......
-
Karen Pegler v Timothy Bruce McDonald
...defendant for an adjournment of the trial and for a Beddoe order. The second was handed down on 6 September 2022 (neutral citation [2022] EWHC 2288 (Ch)), concerning applications by the defendant for summary dismissal of the claim against him, for an order that I recuse myself from hearing......