Srichand Parmanand Hinduja (a protected party by Vinoo Hinduja his litigation friend) v Gopichand Parmanand Hinduja
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Falk |
| Judgment Date | 23 June 2020 |
| Neutral Citation | [2020] EWHC 1533 (Ch) |
| Date | 23 June 2020 |
| Docket Number | Case No: PT-2019-000909 |
| Court | Chancery Division |
[2020] EWHC 1533 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY DIVISION
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
Royal Courts of Justice
Rolls Building, Fetter Lane, London, EC4A 1NL
Mrs Justice Falk
Case No: PT-2019-000909
Eason Rajah QC, Fenella Morris QC, Georgia Bedworth and James Kirby (instructed by Clifford Chance LLP) for the Claimant
Lord Goldsmith QC, David Rees QC and Ciaran Keller (instructed by Debevoise & Plimpton LLP) for the Defendants
Hearing date: 4 June 2020
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.
This is my decision on applications heard in private pursuant to an order made by Morgan J on 12 December 2019. The applications comprise an application by the First Defendant made on 6 December 2019 seeking derogations from the open justice principle (the “Privacy Application”) and an application by the Claimant seeking to regularise the position with regard to the Claimant's litigation friend, Vinoo Hinduja (the “Regularisation Application”). I will refer to the latter as a single application but in fact there are two: an application dated 11 December 2019 and a further application dated 29 April 2020. I will also refer to the parties by the initials used by them, that is SP for the Claimant and GP, PP and AP for the First, Second and Third Defendants respectively. I will refer to Vinoo by her first name, again as she was referred to before me, without intending any disrespect.
The published version of this judgment includes limited redactions made for reasons of confidentiality. The redactions relate to certain other proceedings, in particular proceedings in Jersey which are being conducted in private, and are made to respect the confidentiality of those proceedings.
Background
The parties are brothers, SP being the eldest and the current patriarch of the family. The substantial business empire controlled by the family was originally founded by the parties' father. Vinoo is SP's daughter.
These proceedings are proceedings brought under Part 8 to determine the validity and effect of a letter dated 2 July 2014 signed by SP and the Defendants, together with a further letter apparently from SP dated 1 July 2014. The 2 July letter includes statements to the effect, among other things, that the brothers appoint each other as their executors, and that assets held in any single brother's name belong to all four. The further letter states that GP, PP and AP are authorised to carry out all steps to implement the other letter. I will refer to the two documents together as the “July letter”.
In summary, SP seeks a declaration that neither document has legal effect, whether as a will, power of attorney, declaration of trust or other binding document, or alternatively that the documents are revocable and have been revoked. Additional relief is also sought, in particular an injunction restraining use of the documents and an account of the persons to whom the documents have been submitted and steps taken in reliance on them.
SP's claim was brought on 7 November 2019. The Defendants initially indicated that they wished to challenge jurisdiction, and the Privacy Application was put in terms that linked it to the jurisdictional challenge. However, in their skeleton argument dated 29 May Counsel for the Defendants indicated for the first time that the Defendants no longer intended to pursue the jurisdictional challenge. [redacted] The skeleton argument also stated that GP was no longer seeking to anonymize the parties' names in the title to the proceedings or to require hearings to be in private.
The Defendants' change of position came, realistically, too late for this court to order that the hearing before me, which was in any event organised on a remote basis, should proceed in public rather than in private as previously ordered by Morgan J. However, this judgment is being published, in accordance with the requirements of open justice, subject to the redactions indicated.
As a result of the Defendants' change of position the only part of the Privacy Application to survive is an application seeking an order that a person who is not a party to the proceedings may not obtain a copy of a statement of case from the court records without permission, and that any application by a non-party, whether for permission to obtain a copy of a statement of case, or to obtain a copy of any other document from the court records or communication with the court under CPR 5.4C(2), or a copy of any transcript under CPR 39.9, should be made by an application under CPR 23, a copy of which is to be served on the parties on at least three clear days' notice. However, any link between the Privacy Application and the jurisdictional challenge is removed 1, and the Defendants are seeking a permanent order.
The background to the Regularisation Application is that, through an oversight, SP's advisers failed to file a certificate of suitability from Vinoo under CPR 21.5 when the claim was made. Such a certificate was filed on 10 December 2019, and an application was made on 11 December seeking an order under CPR 21.3(4) giving effect to all steps taken in the proceedings before that filing was made, and confirming that Vinoo was appointed as SP's litigation friend by filing the certificate. The further application dated 29 April sought in the alternative an order under CPR 3.10(b) remedying any error of procedure, or alternatively for the appointment to be made by an order of the court under CPR 21.6. The Defendants object to both applications. Their position is that Vinoo can only be appointed under CPR 21.6, that the court does not have the requisite evidence to confirm SP's status as a protected party, and that Vinoo does not meet the conditions in CPR 21.4(3)(a) or (b).
Due to the substantial narrowing of the Privacy Application, the main focus of the hearing was the Regularisation Application, and I will deal with that first.
Evidence
The evidence before me included, for SP, six witness statements filed by Mr Jeremy Kosky, a partner at SP's solicitors Clifford Chance (the first of these being the evidence filed with the Part 8 claim, and the remainder relating to the applications before me), and for the Defendants two witness statements filed by Christopher Boyne, a partner at the Defendants' solicitors Debevoise & Plimpton. A short witness statement was also provided by Madhu Hinduja, who is SP's wife of 55 years and Vinoo's mother, which confirms that its contents are agreed by the couple's other daughter Shanu. Documentary evidence included not only the July letter but evidence relied on on behalf of SP in relation to his attitude to the July letter in 2015 and 2016.
The Regularisation Application
I have concluded that the court should exercise its power under CPR 21.6 to appoint Vinoo as SP's litigation friend, and order that steps taken in the litigation before that appointment should have effect, as permitted under CPR 21.3(4). My reasons are as follows.
CPR 21: general
CPR 21 and the associated Practice Direction deal with children and “protected parties”. A protected party is a party, or intended party, who “lacks capacity to conduct proceedings”. The meaning of “lacks capacity” is considered further below.
CPR 21.2(1) provides that a protected party must have a litigation friend to conduct proceedings on his behalf. Unlike the position with children, the court has no power to allow a protected party to conduct proceedings without a litigation friend.
CPR 21.3(4) provides that any step taken before a protected party has a litigation friend “has no effect unless the court orders otherwise”.
CPR 21.4 deals with who may be a litigation friend without a court order. CPR 21.4(3) provides that a person may act as a litigation friend if he:
“(a) can fairly and competently conduct proceedings on behalf of the child or protected party;
(b) has no interest adverse to that of the child or protected party; and
(c) where the child or protected party is a claimant, undertakes to pay any costs which the child or protected party may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the child or protected party.”
CPR 21.5 sets out the procedure for a person to become a litigation friend without a court order. Paragraph (1) provides that if the court has not appointed a litigation friend “a person who wishes to act as a litigation friend must follow the procedure set out in this rule”. Where no deputy has been appointed by the Court of Protection with authority to conduct proceedings, the procedure is governed by paragraph (3), which provides that (where the protected person is the claimant) the person “must” file a certificate of suitability “at the time when the claim is made”. Paragraph (4) deals with service, notably not requiring service on the other parties, but rather on someone acting for the protected party, such as a donee under a lasting power of attorney (see CPR 6.13).
CPR 21.6 provides that the court may make an order appointing a litigation friend. An application may be made either by the person who wishes to be the...
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