Mrs Sukhvinder Kimyani and Others v Mrs Devinder Sandhu
| Jurisdiction | England & Wales |
| Judge | Master Matthews |
| Judgment Date | 02 February 2017 |
| Neutral Citation | [2017] EWHC 151 (Ch) |
| Docket Number | Case No: HC-2010-000047 |
| Court | Chancery Division |
Master Matthews
Case No: HC-2010-000047
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Gideon Roseman (instructed by Julian Philip & Co) for the Claimants
The Defendant appeared in person
Hearing dates: 13 December 2016
Judgment Approved
Introduction
This is my judgment on an application by the defendant by notice dated 16 September 2016. In response to the question in section 3 of the notice "What order are you asking the court to make and why?" she has written the following:
"I hereby make an application for Master Matthews to recuse himself from this case on the grounds of bias and unfair proceedings. There is a real danger of bias & I object to continuing to hearing case. A hearing before a biased judge is unfair & prejudicial against defendant. Recusal Order."
The application is supported by evidence given in the box under section 10 of the Form N244 and in a witness statement from the defendant dated 3 October 2016.
The application is made in the context of a claim begun as long ago as 28 May 2010, when the claimants, who are the defendant's three sisters, issued a claim form seeking the removal of the defendant as administratrix of their late mother's estate, and for an account of the administration carried out by her. The defendant had obtained letters of administration to the estate on 12 May 2009. The claimants alleged that this was done in breach of an agreement between the four siblings, under which another sister was to apply. The defendant denied the allegation. In preparing this judgment, I have had the benefit of the papers supplied by the parties, and also the court electronic file, which begins in August 2015. I had not had access to the earlier paper file.
The sequence of events
Hearing of the claim
On 1 June 2011, there was a hearing of the claim before Master Bragge, then the allocated master for this claim. The claimants were represented by counsel (not Mr Roseman who appeared before me), and the defendant appeared in person. Following the hearing, the Master produced a written judgment. The claimants exhibited the whole of a draft of this judgment, dated 30 June 2011. The defendant exhibited the front cover from the approved judgment, which is dated (and I assume was handed down) on 15 December 2011, but followed that in her exhibit by two pages from the draft judgment. (I should say that I have seen no other pages of the approved judgment.) One of those two pages contains passages that the defendant relied on as showing that she had been successful before Master Bragge. At para [9] of the draft judgment, Master Bragge accepts "that she 'won' the case against the London Borough of Hounslow in the Guildford County Court and was awarded costs" and also records that the defendant "tells me that she has also 'won' a further appeal with the Department of Work and pensions and therefore has saved the estate a considerable amount of money," in each case without retaining solicitors. Master Bragge said:
"I am satisfied that her work has resulted in substantial financial benefits to the estate, as set out by her."
However, the Master also went on to say in his judgment that he was concerned by an apparent failure to keep the other beneficiaries informed of the administration. The defendant's explanation for one such failure was described as "not entirely satisfactory". There was a problem in providing a replacement distribution cheque to the first claimant. There was delay in the defendant's paying some funeral expenses incurred by the first claimant. He did not accept the defendant's allegations that she had been impeded in the administration by her sisters. He was satisfied that the claimants had no confidence in the defendant's remaining as personal representative, and that the poor relationship between them "has adversely affected the administration of the estate"
The Master concluded (at [22])
"that, despite [the defendant's] detailed work, the interests of the beneficiaries as a whole, and [the first claimant] in particular would on balance be best served by a professional administrator, but I shall not make that order if [the defendant] agrees to provide to the claimants' solicitors a further account (to which is annexed appropriate copy supporting documentation) and remits forthwith to [the first claimant] a cheque payable to her in respect of the interim account (and any other outstanding expenses) and immediately informs the claimants' solicitors of details relating to the marketing and sale of Brookwood Road. Generally she will need to respond positively and promptly to any requests for information reasonably and proportionately made by [the claimants' solicitors]. If this does not take place then I will make an order for the appointment of an independent administrator, notwithstanding that the estate is close to being finally administered."
Master Bragge's order following the hand-down of his judgment is dated 23 December 2011. It provides that the defendant must provide the further interim accounts by 6 January 2012, and (significantly) that the claimants be paid their costs of the application out of the estate, but if there is default by the defendant in complying with the order then by the defendant out of her share of the estate. The defendant did not provide the further accounts in time, and Master Bragge made a further order on 28 February 2012, extending time for compliance to 27 March 2012. He also disallowed certain items in the defendant's account, saving one item in respect of which it was recorded that the court had as yet made no determination. This was an entry for 23 May 2009 "Mortgage contribution by Sandhu family". He further ordered the defendant to pay the costs of that hearing, to be subject to detailed assessment if not agreed, out of her share of the estate.
Costs proceedings
The parties having failed to reach agreement over the quantum of costs, the claimants began detailed assessment proceedings. On 1 February 2013 the Senior Courts Costs Office ordered that the defendant pay the claimants £ 16500 on account of costs, and also £1220 for the costs of the application dated 4 January 2013. On 3 July 2013 Master Bragge made a final third party debt order addressed to the defendant's bank, and ordered the defendant to pay the claimants' costs personally. Further final third party debt orders were made on 18 November 2013 and 3 March 2014 by Deputy Master Jeffries and Deputy Master Bartlett respectively. In each case the deputy master recorded that the defendant's conduct had been unreasonable. Master Bragge retired in 2014, and I was appointed as a full-time master in July 2015.
The first interim charging order
On 29 June 2015 the claimants made an application for an interim charging order against the defendant's house, based on what they said were outstanding costs. On 16 July 2015 I made that order on the papers put before me in respect of the sum of £15,995.69 said in the application to be outstanding, with a return day of 2 September 2015 (as it happened, a day when I would be away on annual leave). On 29 July 2015 the claimants applied by notice for an order that the estate be distributed on the basis of the draft accounts, or alternatively for an order removing the defendant as personal representative. On 19 August 2015 the defendant applied by notice for an order setting aside the interim charging order. This was due to be heard on 26 August 2015 by Chief Master Marsh (as I would be on annual leave then). A solicitor instructed by the defendant (though not, I think, on the record) wrote to the Chief Master to say that the parties had agreed that both hearings (26 August and 2 September) should be adjourned and relisted. On this basis, on 25 August 2015 Chief Master Marsh ordered that the two applications of 29 July and 19 August be listed before me on 30 September 2015.
That hearing was the first I had held in the matter since becoming a full-time master. It lasted more than three hours. The claimants were represented by counsel (not Mr Roseman) and the defendant appeared in person. I heard counsel for less than half an hour. The rest of the time was taken up with the defendant's oral submissions. I gave directions for the resolution of the application to set aside the charging order and also of various issues on the draft accounts. I reserved both applications to myself, on the basis that, having already had the benefit of lengthy submissions, I would be more familiar with the case than any deputy would. The defendant made no objection that I am aware of. My directions were set out in the order dated 5 October 2015 and sealed on 8 October 2015.
In accordance with the order of 5 October 2015, the claimants' charging order application of 29 June 2015 was listed for hearing on 17 December 2015. A few days before this hearing the defendant indicated that she would be unable to attend owing to ill-health. With the agreement of the claimants, on 14 December 2015 the hearing fixed for 17 December was adjourned to 10 March 2016 with a time estimate of 1 day. It was intended that all the outstanding applications should be disposed of on that day.
Request under CPR Part 18
In the context of the dispute over the estate accounts, the defendant had filed and served a witness statement dated 25 September 2015. The claimants sent to the defendant a request under CPR Part 18 by post on 28 January 2016, in relation both to this statement and various aspects of the draft estate accounts. The request asked some 23 questions over six pages, and sought production of certain documents. The defendant did not...
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