Rebecca Millburn-Snell and Others v Susan Cecile Evans
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rimer,Lord Justice Hooper,Lord Neuberger Mr |
| Judgment Date | 25 May 2011 |
| Neutral Citation | [2011] EWCA Civ 577 |
| Docket Number | Case No: A3/2010/1536 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 May 2011 |
[2011] EWCA Civ 577
Lord Neuberger, Master of the Rolls
Lord Justice Hooper
Lord Justice Rimer
Case No: A3/2010/1536
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
LEEDS DISTRICT REGISTRY
Claim No: 9LS30543
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Tony Oakley (instructed by Bridge McFarland) for the Appellants
Mr Joshua Winfield (instructed by Roythornes LLP) for the Respondent
Hearing date: 22 February 2011
Introduction
The issue raised by this appeal turns on CPR Part 19.8(1). On 2 June 2010, five days before the trial was due to start, the defendant issued an application to have the claim struck out on the ground that the claimants had no title to sue. Two days later the application came before His Honour Judge Langan QC, sitting as a High Court Judge in the Chancery Division, Leeds District Registry. The claimants confessed and sought to avoid – by admitting their lack of title but asking the judge to exercise the power they said he had under Part 19.8(1) to authorise them to continue the claim nonetheless.
The judge held that he did not have the suggested power. He struck the claim out and ordered the claimants to pay the defendant's costs of the application, assessed at £4,750, and half of the balance of her costs of the claim, to be assessed. He recognised that the issue under Part 19.8(1) was not straightforward and gave permission to the claimants to appeal. He refused the defendant permission to appeal against his refusal to award her all her costs.
By their appeal, and if wrong on the main point, the claimants also challenge the judge's order that they should have been ordered to pay as much as half of the defendant's costs of the claim. It seemed to me unfair that the defendant should have to meet that case whilst being deprived of the right to argue that the judge should have awarded her all her costs. So on 11 October 2010 I permitted her to cross-appeal against the costs order. Tony Oakley, who did not appear below, represented the claimants (appellants). Joshua Winfield, who did, represented the defendant (respondent).
The facts
The claimants – Rebecca Millburn-Snell, Sarah Millburn and Catherine Millburn – are the daughters of the late Timothy Millburn, who died intestate on 7 March 2007. The defendant, Susan Evans, owns a property at Willow Farm, Thorpe Fendykes, near Wainfleet, Skegness ('Willow Farm').
On 8 March 2007, the day after Mr Millburn's death, Bridge McFarland, solicitors who had previously been advancing an epistolary claim on his behalf against the defendant, wrote to her solicitors, Roythornes. Their letter included this: 'Our client's children are considering whether they wish to pursue the claim on behalf of their father at this stage, and we will advise you once a decision has been reached.' On 17 April 2007 they wrote further that they were 'instructed to act on behalf of the Personal Representatives of Mr Millburn deceased …' in relation to certain land. Correspondence followed with Roythornes, who headed their letters 'Mrs S.C. Evans — and—The Personal Representatives of Mr T.E.J. Millburn deceased'.
The correspondence was inconclusive. On 30 April 2008, in a formal letter of claim, Bridge McFarland gave the names of the three proposing claimants and said they were 'the personal representatives' of the late Mr Millburn. They outlined the proposed claim, one based on the assertion that Mr Millburn and the defendant were business partners. The next letter we have is Bridge McFarland's of 17 July 2009, saying they had issued proceedings. In fact, the claim form was issued on 21 July 2009.
The claim form was accompanied by Particulars of Claim, with paragraph 1 saying this:
'The Claimants are the personal representatives of Mr Timothy Eric James Millburn (Deceased) who died on 7 th March 2007 and are entitled to bring this claim on behalf of his estate.'
There followed allegations amounting to a claim that, as a result of a relationship with the defendant lasting from 1989 to 2006, Mr Millburn had acquired a 50% beneficial interest in Willow Farm and the riding school business carried on there. The case was founded on the principles of proprietary estoppel, with the 19 sub-paragraphs of paragraph 9 listing the work Mr Millburn allegedly carried out at Willow Farm in reliance on assurances given to him. The pleading was signed by counsel, provided the name of the claimants' solicitors and bore statements of truth dated 23 June 2009 signed by each of the claimants by which they said that they believed that 'the facts stated in these Particulars of Claim are true.'
A Defence, served on 28 August 2009 and accompanied by seven appendices of documents, disputed the claim. As to paragraph 1 of the Particulars of Claim, it pleaded that:
'The Defendant makes no admissions in respect of the contents of paragraph 1 of the Particulars of Claim.'
That put in issue the claimants' title to sue and required them to prove their title at the trial by producing a grant to them of letters of administration of Mr Millburn's estate. The defendant served a request for further information as to the allegations in the Particulars of Claim, which was answered in two stages, the second following an order of 16 December 2009 that also gave directions for disclosure, witness statements and trial. A further order of 21 December 2009 fixed the trial date as 7 June 2010, with a time estimate of four days, and gave directions for trial bundles and skeleton arguments. On 28 January 2010 the claimants gave their disclosure by a list which, despite the issue as to their title to sue, did not include a grant of letters of administration. An order of 20 April 2010 permitted the adducing of expert evidence as to the value of Willow Farm and extended to 30 April 2010 the time for witness statements.
On 28 May 2010, five clear working days before the trial, Roythornes sent a fax to Bridge McFarland, referring to the defendant's non-admission of paragraph 1 of the Particulars of Claim (the claimants' title to sue). They asked for production of a certified copy of the grant of probate (if any grant existed, it would in fact have been a grant of letters of administration). Bridge McFarland's fax reply on the same day read thus:
'… The right of the Claimants to act as Personal Representatives has never been challenged by you. No Grant of Probate was taken out. It is permissible for persons to act as Personal Representatives either for or against a Trustee etc and we can find nothing in the rules (particularly CPR 19) that prevents an action continuing. CPR 19.8 merely requires that if a Defendant dies then the Claimant should apply for a person to be appointed and that seems to be the extent of the rule. This was a matter that we canvassed with Counsel long ago who concurred that it was suitable to pursue the claim in the form "Personal Representatives of the Deceased".
The three Claimants are the only children of the Deceased. They are the only persons entitled to make the claim. If the claim is successful the Court can direct that Probate should be applied for. …'.
That unimpressive reply cut no ice with the Roythornes, who on 2 June 2010 emailed Bridge McFarland to say that, with neither a will nor a grant, the claim was fatally flawed and the defendant was going to make an application to have it struck out. An application notice was issued that day. The ground was that the claimants were purporting to sue as the personal representatives of their late father, who had died intestate, yet had neither sought nor obtained a grant of letters of administration of his estate.
CPR Part 19
The issue before the judge arose under CPR Part 19, headed 'Parties and Group Litigation'. Part 19.8 is of direct relevance and provides:
' Death
19.8—(1) Where a person who had an interest in a claim has died and that person has no personal representative the court may order –
(a) the claim to proceed in the absence of a person representing the estate of the deceased; or
(b) a person to be appointed to represent the estate of the deceased.
(2) Where a defendant against whom a claim could have been brought has died and –
(a) grant of probate or administration has been made, the claim must be brought against the persons who are the personal representatives of the deceased;
(b) a grant of probate or administration has not been made –
(i) the claim must be brought against "the estate of" the deceased; and
(ii) the claimant must apply to the court for an order appointing a person to represent the estate of the deceased in the claim.
(3) A claim shall be treated as having been brought against "the estate of" the deceased in accordance with paragraph (2)(b)(i) where –
(a) the claim is brought against the "personal representatives" of the deceased but a grant of probate or administration has not been made; or
(b) the person against whom the claim was brought was dead when the claim was started.
(4) Before making an order under this rule, the court may direct notice of the application to be given to any other person with an interest in the claim.
(5) Where an order has been made under paragraphs ( 1) or (2)(b)(ii) any judgment or order made or given in the claim is binding on the estate of the deceased.'
The judge's judgment
The application came before the judge on the Friday before the Monday on which the trial was due to start. He had, therefore, to make an immediate decision and expressed regret that time did not allow him to give the more careful consideration to the issue that he would have wished. His judgment is, however, typically clear, well reasoned and...
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