Luke Price v Gillian Anne Goulet
| Jurisdiction | England & Wales |
| Judge | Worster |
| Judgment Date | 31 March 2023 |
| Neutral Citation | [2023] EWHC 757 (Ch) |
| Docket Number | Case No: PT-2021-BHM-000012 |
| Court | Chancery Division |
and
[2023] EWHC 757 (Ch)
HHJ Worster
(sitting as a Judge of the High Court)
Case No: PT-2021-BHM-000012
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BIRMINGHAM
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
The Birmingham Civil Justice Centre
Priory Courts, 33, Bull Street, Birmingham B4 6DR
John Keddie, Solicitor (of Midwinters Solicitors) for the Claimants
The Defendant in person
Hearing date: 6 January 2023
Approved Judgment
HHJ Worster
This judgment was handed down remotely at 10.30am on 31 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The application
I heard this application on 6 January 2023 at a hearing held by MS Teams. There was insufficient time to give a judgment at the hearing (which ran over significantly), and the preparation of this written judgment was then delayed whilst a copy of the bundle prepared for the trial and of the judgment of HHJ Mithani KC of 14 September 2022 were obtained.
The Defendant makes this application by his application notice dated 17 November 2022, filed on 30 November 2022. The Claimants were not served with the notice, but they subsequently became aware of it, and took no point on service at the hearing before me. The application seeks orders setting aside or staying the order made by HHJ Mithani KC on 14 November 2022 which in turn struck out the Defendant's application for an order setting aside the order made by HHJ Mithani KC in the absence of the Defendant at the trial on 14 September 2022.
The application is to be determined by reference to the test set out under CPR Part 39.3(5):
Where an application is made … by a party who failed to attend the trial, the court may grant the application only if the applicant:
(a) acted promptly when he found out that the court had exercised its power to strike out or enter judgment or make an order against him
(b) had a good reason for not attending the trial; and
(c) has a reasonable prospect of success at trial.
The general approach to be adopted in relation to applications under rule 39.3(3) is not in dispute. In Bank of Scotland Plc v Pereira [2011] EWCA Civ 241 Lord Neuberger MR said this:
24. First, the application to appeal Judge Ellis's refusal under CPR 39.3 to set aside the Order. An application to set aside judgment given in the applicant's absence is now subject to clear rules. As was made clear by Simon Brown LJ in Regency Rolls Ltd v Carnall [2000] EWCA Civ 379, the court no longer has a broad discretion whether to grant such an application: all three of the conditions listed in CPR 39.3(5) must be satisfied before it can be invoked to enable the court to set aside an order. So, if the application is not made promptly, or if the applicant had no good reason for being absent from the original hearing, or if the applicant would have no substantive case at a retrial, the application to set aside must be refused.
25. On the other hand, if each of those three hurdles is crossed, it seems to me that it would be a very exceptional case where the court did not set aside the order. It is a fundamental principle of any civilised legal system, enshrined in the common law and in article 6 of the Convention for the protection of human rights and fundamental freedoms that all parties in a case are entitled to the opportunity to have their case dealt with at a hearing at which they or their representatives are present and are heard. If the case is disposed of in the absence of a party, and the party (i) has not attended for good reasons, (ii) has an arguable case on the merits, and (iii) has applied to set aside promptly, it would require very unusual circumstances indeed before the court would not set aside the order.
26. The strictness of this trio of hurdles is plain, but the rigour of the rule is modified by three factors. First, what constitutes promptness and what constitutes a good reason for not attending is, in each case, very fact-sensitive, and the court should, at least in many cases, not be very rigorous when considering the applicant's conduct; similarly, the court should not pre-judge the applicant's case, particularly where there is an issue of fact, when considering the third hurdle. Secondly, like all other rules, CPR 39.3 is subject to the overriding objective, and must be applied in that light. Thirdly, the fact that an application under CPR 39.3 to set aside an order fails does not prevent the applicant seeking permission to appeal the order. It is not very convenient, but an applicant may be well advised to issue both a CPR 39.3 application and an application for permission to appeal at the same time, or to get agreement from the other party for an extension of time for the application for permission to appeal.
That passage was cited with approval by Sir Terence Etherton MR in Mohun-Smith v TBO Investments Ltd [2016] EWCA Civ 403.
In this case the Claimants accept that the Defendant's application was made promptly. They do not accept that the Defendant had a good reason for not attending the hearing on 14 November 2022, but in any event submit that the Defendant has no reasonable prospect of success at trial. In the context of CPR Part 39.3(5) that means a defence which carries some degree of conviction. The test is akin to that applied on summary judgment, namely whether there is a “realistic” as opposed to a “fanciful” prospect of success.
To succeed, the Defendant's application must also satisfy the test for relief from sanction provided for by CPR Part 3.9; see Gentry v Miller [2016] EWCA 141.
The proceedings
It is necessary to examine something of the history of the claim. The Claimants are the Executors of the Will of Pamela Mary James who died on 19 November 2019. The first Claimant was her only grandson, and the second Claimant was her next-door neighbour. The Defendant is one of Mrs James' two children, and the first Claimant's uncle. The claim was brought to prove the last Will Mrs James made on 7 October 2019. The net estate was estimated at about £390,000. The first Claimant is the sole residuary beneficiary and takes majority of the estate.
Following his mother's death, the Defendant entered a caveat. That was warned off, but the Defendant showed no signs of issuing proceedings to challenge the Will, so the Executors issued this claim on 30 January 2021.
At that stage the Defendant was represented by solicitors (Davies and Partners) who served a Defence and Counterclaim on 30 April 2021, alleging that Mrs James lacked testamentary capacity, and that she had been unduly influenced by the first Claimant. By his counterclaim, the Defendant seeks to prove an earlier Will dated 16 August 2018. That Will left the first Claimant a legacy of £10,000 and after some other bequests, divided the residuary estate between the first Claimant (21.67%) the Defendant (21.67%) Mrs James' other son Christopher (21.67%) and members of her step-daughter's family (35%). Christopher has made an application under the Inheritance (Provision for Family and Dependents) Act 1975, but does not challenge the 2019 Will. His claim is stayed pending the outcome of this claim.
The Costs and Case Management Conference on 3 August 2021 was attended by the parties' solicitors. District Judge Malek gave directions taking the matter through to trial. The order is prefaced by the following:
Warning: you must comply with the terms imposed upon you by this order otherwise your case is liable to be struck out or some other sanction imposed. If you cannot comply you are expected to make formal application to the court before any deadline imposed upon you expires.
Paragraph 10 of the directions order provided for disclosure. The parties had agreed the issues for disclosure as:
(i) the deceased's Will making history/records/files generated upon her instructions,
(ii) the deceased's medical records, and
(iii) undue influence
No further disclosure was required as to (i). The Claimants' solicitors had some 10,000 pages of the deceased's medical records which were available for inspection. As to (iii) the parties were not aware of any documents in existence. A Disclosure Review Document was to be prepared by 18 August 2021. By paragraph 12.5 of (what was then) the Disclosure Pilot under CPR Part 51U, a party was not entitled to rely upon a document within its control if it had not disclosed it within the time required by Extended Disclosure or within 60 days of the CCMC if there was no Extended Disclosure, without the permission of the court. The same provision is to be found in the current provisions in PD 57AD. That sanction is to be seen in the context of the duty to give disclosure, and the fact that documents come into the possession of parties at various times.
Paragraph 11 of the directions order provided that witness statements were to be exchanged by 7 February 2022, and were to comply with the requirements of PD 57AC paras 3– 4, PD 32 paras 17–20 and PD 22 para 3A. The relevant sanction here is that provided by CPR Part 32.10:
If a witness statement … for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.
However the failure to verify a witness statement with a statement of truth does not of itself render the statement inadmissible. CPR Part 22.3 provides that the court may direct that it shall not be admissible.
In addition, there was permission for the parties to rely upon the report of a jointly instructed expert in geriatric psychiatry. The parties were to agree the identity of the expert, who was to report by 29 April 2022.
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