Pauline Mavis Patricia Lomax v Stuart Andrew Lomax
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Parker |
| Judgment Date | 20 May 2019 |
| Neutral Citation | [2019] EWHC 1267 (Fam) |
| Court | Family Division |
| Docket Number | Case No: LS18P00657 |
| Date | 20 May 2019 |
[2019] EWHC 1267 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Sitting at Leeds Family Court on 22 June 2018 and at Manchester Civil Justice Centre on 17 and 19 July 2018
THE HONOURABLE Mrs Justice Parker
Case No: LS18P00657
Mr Ian Mayes QC and Mr Christopher Buckingham (of counsel) (instructed by KBL Solicitors) for the Claimant
Mr Thomas Entwistle (of counsel) (instructed by Raworths Solicitors) for the Defendant
Hearing dates: 22 June 2018 (Leeds), and 17 July 2018 and 19 July 2018 (Manchester) by telephone
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.
THE HONOURABLE Mrs Justice Parker DBE
This judgment is being handed down in open court. It consists of 127 paragraphs and has been signed and dated by the judge
The Judge hereby gives leave for it to be reported.
The Claimant, Mrs Pauline Lomax, ‘C’, a widow, has commenced proceedings for provision out of the estate of her late husband pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 (‘the Inheritance Act’), issued in the Family Division of the High Court. The Defendant, Mr Stuart Lomax, ‘D’, her stepson, co-executor, and beneficiary, resists her application.
C seeks an Early Neutral Evaluation hearing (‘ENE’) or Financial Dispute Resolution hearing (‘FDR’). D does not agree. Can I order that there be such a hearing (and by extension give directions for it) in the absence of consent pursuant to amended Civil Procedure Rule ( CPR) 3.1 (2) (m)? This stark decision has proved more difficult than it may seem.
The proceedings
C was married to the deceased for 34 years. C and D are joint executors of the deceased's will, dated 23 December 2013. A suggestion that C would challenge his capacity and/or assert undue influence is not presently pursued. D says that substantial and sufficient provision has already been made for her by will.
The estate is worth about £5.5 M and held on trust with income to be paid to the laimant during her lifetime and thereafter the capital and income on a discretionary trust for a class of discretionary beneficiaries including D, his sister, the Deceased's grandchildren, and remoter issue.
Shares in a family company are held in three settlements, of which C contends two are family settlements. After distribution of the proceeds of sale of the personal shareholdings of inter alia C and D, a balance of approximately £50 M was paid into the three settlements, D and his wife being the only Trustees of two of these. It is asserted that they have distributed large amounts of funds to themselves. C asserts but D denies that there was delay in disclosing relevant documents until issue of these proceedings.
C seeks variation of those trusts as postnuptial settlements, asserting that this provides reasonable provision, since the Inheritance Act permits the court to make an order varying any ante-nuptial or post-nuptial settlement (including such a settlement made by will) made on the parties to a marriage to which the deceased was one of the parties, the variation being for the benefit of the surviving party to that marriage, or any child of that marriage, or any person who was treated by the deceased as a child of the family in relation to that marriage.
D's case is that C's claim has no possible merit — presumably on the basis that adequate provision has been made for her — and appears to be an abuse of legal process, and that 90% of the evidence so far filed is almost certainly irrelevant.
The directions appointment
A directions application came before me on 22 June 2015 whilst sitting at Leeds. C was represented by Mr Ian Mayes QC and Mr Buckingham and D by Mr Entwistle.
Inheritance Act proceedings have much in common with financial remedy proceedings. There are similarities in the relief that can be ordered: there is an element of discretion in the award; they usually concern family assets; there is often a family or domestic relationship; and they can give rise to deep emotions.
Mr Mayes counsel stresses that spousal claims in Inheritance Act claims are to be approached similarly to applications for financial provision in divorce (this may be tempered by the position of other beneficiaries under a will or intestacy; or conversely enhanced as there is no other spouse for whom to provide).
However, Inheritance Act proceedings are governed by the Civil Procedure Rules (‘CPR’) and not by the Family Procedure Rules 2010 (FPR). CPR rules 57.14 to 16 apply, pursuant to which the claim form has been issued in accordance with Part 8.
Mr Mayes told me that there is little authority on variation of settlements in Inheritance Act cases and none of comparable value. He raised the possibility of an ENE or FDR hearing.
The bulk of the hearing on 22 June was taken up by argument/ discussion as to what was an appropriate form of ADR, and FDR was referred to as well as ENE. It was common ground that since the Family Procedure Rules 2010 (‘the FPR’) do not apply to Inheritance Act proceedings the FDR process prescribed in the FPR only applies in Financial Remedy applications.
Mr Mayes explained in court that ENE is now provided for in the amended Civil Procedure Rules CPR Rule 3.1. (2) (m), and that provision for an FDR process is contained in the Chancery Guide, but volunteered and accepted that there was no power for the court to order an ENE or FDR. He told me that D's legal team had been informed of C's proposal for ENE by a High Court Judge on 10 May 2018.
Although I am told that a Note prepared on behalf of C, dated 20 June 2018, had been provided to the court (as well as a case summary). I have been provided with both Note and skeleton argument since the circulation of this judgment in draft. The contents do not add to the information which I had already considered in oral argument and do not cause me to change my conclusions.
The Note expanded on the reason for seeking an ENE or FDR, reproduced Rule 3.1 (2) (m), and referred to the decision of Norris J in Seals and Seals v Williams [2015] EWHC 1829 (Chancery), [2015] 4 Costs LO 423. I am certain, and so is my clerk, that I did not see it before the hearing commenced. I recall struggling to read into the case without a reading list (which the skeleton argument contained) and remarking on this. I cannot now recall, and neither counsel can tell me, whether I was referred to the Note or its attachments in court. I have recorded nothing to that effect in my notebook. Having been recently provided with the Note after circulation of this judgment in draft its contents were unfamiliar. I would certainly have remembered being referred to Ilott v Mitson (No 2) [2017] 2 WLR 979 (having heard one of the appeals at High Court Level), and probably also P v G [2006] 1 FLR 431- and I do not. Also, I recall that I did not see in court the Rule itself, either a copy, or in a document. (I cannot remember whether Seals was referred to at the hearing).
So, I am inclined to think that I did not see the Note on behalf of C or the other material with which it was sent. I may or may not have seen Mr Entwistle's skeleton argument. It may be in the light the of the concession on behalf of C that it was not considered relevant for me consider Seals nor the amended CPR Rule 3. (2) 1. (m).
Counsel agree however that I was not provided with the commentary on the amended Rule in the White Book (there was no White Book in the court room at Leeds Family Court, and no request was made that one be provided); now relied on by C. I was not told that there was any relevant commentary in any publication either in favour of or against the proposition that an ENE might be ordered without the consent of both parties.
I cannot recall whether a draft directions order had been produced. I am certain that no draft was provided which referred to ENE or specified the terms of reference of any ENE; and counsel do not dissent from this. The remainder of the directions were essentially agreed but their timing depended on what steps were to be taken as to ADR.
Mr Mayes asked me to give an indication as to whether I considered that an ENE would be beneficial or not. Mr Entwistle had not addressed in his skeleton argument C's case that the case was best suited to a form of ENE. This may or may not have been because he thought there was no point, in view of the concession therein that there was no power to order it. In oral submissions he asked me not to interfere by expressing a view; he argued that no transaction was impugned, and that ENE/FDR would lead to a substantial increase in costs because of the extent of the disclosure required. He told me that D was prepared to submit to mediation and proposed that it should take place over summer/ autumn 2018.
I ruled that I should give an indication as part of my case management powers and in general conformity with the overriding objective.
I said that this was a case which cried out for a judge-led, legally-focussed, authoritative process; but that I could not order such in the light of Mr Mayes's concession. I also said words to the effect that a form of mediation focussed on conciliating the relationship and finding common ground was unlikely to be helpful concentrating on the contested issues. I have not seen a transcript of what I said, and do not need to for the purposes of the current evaluation.
The resulting draft order thus provided for:-
a. Case management and trial by a High Court Judge
b. Permission to C to amend her details of claim and re-serve including on other discretionary beneficiaries
c. Disclosure and inspection...
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