Procedure
| Author | Nasreen Pearce |
| Pages | 317-343 |
Chapter 12
Procedure
12.1 INTRODUCTION
All applications under the I(PFD)A 1975 may be made in the Chancery Division
or the Family Division of the High Court, with limited jurisdiction in the county
court (see below). The procedure is governed by CPR Part 57 as amended and the
Practice Direction which supplements Part 57 irrespective of whether the
application is issued in the Chancery Division or the Family Division of the
High Court or is transferred to the Family Division (CPR r 57.15(2)). However,
if the application is issued in the Family Division or is transferred there, the
requirements as to bundles and preliminary documents set out in FPR 2010,
PD 27A should be followed (see Re XY Application of PD 27A, Claims under the
(Fam)). The rules now provide uniform practice and procedure in both the High
Court and the county courts. In addition to Part 57, the CPR generally apply to
claims under the I(PFD)A 1975, for example ‘the overriding objective’, the need
to comply with the Chancery Guide 2022(Courts and Tribunals Judiciary, 2022),
the General Pre-Action Conduct and Protocols Practice Direction and recourse to
alternative dispute resolution, service and costs.
The county courts’ jurisdiction to entertain a claim under the I(PFD)A 1975 was
limited to estates not exceeding £30,000. This limit was removed by Courts and
Legal Services Act 1990, ss 1 and 120, and the High Court and County Courts
Jurisdiction Order 1991 (SI 1991/724).
12.2 PRE-ACTION PROTOCOL
The CPR impose a duty on the parties and the court to ensure that the General
Pre-Action Conduct and Protocols Practice Direction is followed. Although there
is no specific Protocol that applies to claims under the I(PFD)A 1975, CPR r 3.1( 4)
requires the court when giving directions to take into account whether or not a
318 A Practitioner’s Guide to Inheritance Act Claims
party has complied with the General Pre-Action Conduct and Protocols Practice
Direction and any other Pre-Action Protocol (for which, see theWhite Book
Service(Sweet & Maxwell, 2022)). CPR r 3.1(5) gives the court power to order
a party to paya sum of money into court if that party has, without good reason,
failed to comply with a relevant protocol. The court is also required, when dealing
with any application for relief from sanctions imposed for non-compliance with
any rule, practice direction or order, to consider the extent to which the party in
default has complied with any relevant Pre-Action Protocol.
In addition, when deciding what order to make on costs, one of the factors which the
court has to take into account is the conduct of the parties and this includes conduct
before as well as during the proceedings, and in particular theextent to which the
parties followed any relevant General Pre-Action Conduct and Protocols Practice
Direction (CPR r 44.3(5)(a)) and the Chancery Guide 2022, and in particular those
set out in Chapter 23 relating to applications under the I(PFD)A 1975). It is,
therefore, essential to follow the General Pre-Action Conduct and Protocols Practice
Direction before commencing any proceedings under the I(PFD)A 1975. It may also
be useful to follow the guidance given by the Association of Contentious Trust and
Probate Specialists in their ACTAPS Code (which includes claims under the
I(PFD)A 1975), where appropriate (see Appendix A11).
12.3 VENUE
Proceedings may be commenced in the High Court or a county court. Proceedings
in the High Court are assigned to the Chancery Division – Business and Property
Courts of England and Wales (Property, Trusts and Probate List) and the Family
Division of the High Court (CPR r 57.15). Note, that the Family Court does not
have jurisdiction to hear claims under the I(PFD)A 1975 because The President’s
Guidance, Jurisdiction of the Family Court: Allocation of Cases within the Family
Court to High Court Judge Level and Transfer of Cases from the Family Court to
the High Court, of 24 May 2021, para 13 and Sch, Part A (5) specifically confirm
that the Family Court does not have jurisdiction and that proceedings under the
I(PFD)A 1975 must be commenced in the Family Division. Masters of the
Chancery Division and district judges of the Family Division also have jurisdiction
to hear claims issued in their respective divisions. The choice of division is a matter
of discretion for the claimant. Where there have been matrimonial proceedings
affecting the claimant or any of the parties to the proposed action, the court in which
the matrimonial proceedings were heard would be the appropriate court in which to
make a claim under the I(PFD)A 1975 if the passage of time between the previous
proceedings and the proceedings under the Act is not long. The Chancery Masters’
Guidelines for the Transfer of Claims issued by the Chief Master at para 14 states
that, ‘Inheritance Act Claims by a spouse will usually be suitable for transfer to the
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting