Tibbs v Dick
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STUART-SMITH,LORD JUSTICE SWINTON THOMAS,LORD JUSTICE ALDOUS |
| Judgment Date | 25 June 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0625-2 |
| Docket Number | FC3 98/6326/2 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 June 1998 |
[1998] EWCA Civ J0625-2
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR JUSTICE BENNETT)
Royal Courts of Justice
Strand
London W2A 2LL
Lord Justice Stuart-Smith
Lord Justice Swinton Thomas
Lord Justice Aldous
FC3 98/6326/2
THE APPELLANT appeared in person.
MR PATRICK ROCHE (instructed by Messrs Hodge Jones & Allan, London NW1 9PG) appeared on behalf of the Respondents (Defendants).
I will ask Lord Justice Swinton Thomas to give the first judgment.
This is an appeal with the leave of this court given on 18 December 1997 from a consent order made by Mr Justice Bennett on 24 March 1997. It is an important feature of the appeal that it is made in the context of being an appeal against a consent order.
By two originating summonses Mrs Doreen Ivy Tibbs and her son, Jason Ronald Tibbs, applied for an order that reasonable financial provision should be made for them out of the net estate of John Dick deceased under the provisions of the Inheritance (Provision for Family and Dependants) Act 1975. The plaintiffs were at the time of the issue of the proceedings and subsequently at the hearing before Mr Justice Bennett represented by solicitors, two different firms of solicitors but both of them are very experienced in this particular field.
The deceased died on 28 August 1995. The executor of the estate is the first defendant in the proceedings, Mr Hugh Webb, who was the deceased's solicitor. The second defendant is Trevor John Dick, who is the only child of the deceased and is severely disabled. The third to eighth defendants inclusive are nephews and nieces of his.
The will is dated 7 September 92 and probate was granted to the first defendant on 21 January 1996. By his will the deceased bequeathed a freehold property, 358 Essex Road, London, N11 upon trust for sale to the third to eighth defendants equally, that is to say that the proceeds of sale were to be divided equally between the nephews and nieces, and the residue of the estate was to be held in trust for his son, the second defendant.
Mrs Tibbs' case was that for a period of about 30 years she was the mistress of the deceased. They did not at any time live together but it is her case that they had a sexual and friendly relationship over those years and that he was the father of her son, Jason Ronald Tibbs, who was born in 1979. It was her case that both she and Jason were to an extent financially dependent on the deceased. She says that she received cash payments from him between 1989 and 1995 varying between £3,000 and £5,000 a year. She says that he took her away on holiday from time to time and that he provided presents and treats for Jason and that he would, had he lived, have provided for Jason's education at the Pitman College. Jason had left school at the age of 14 but it was nonetheless the case that he proposed to enrol in a computer course at that college.
In his affidavit sworn on 12 September 1996 Mr Webb, the executor, stated that as at the date of the death of the deceased his estate was valued at £431,135. The principal assets were:
(1) £195,958 in bank accounts;
(2) 38 Wentworth Avenue, London N3, his home, which was valued at £150,000; and
(3) 358 Essex Road, London N1, valued at £85,000.
That last property was the property the proceeds of sale of which were to be divided between the nephews and nieces. Inheritance tax paid as at the date of Mr Webb's affidavit was £110,854.
The position of the son, Trevor Dick, was obviously a relevant feature in these proceedings. On 9 December 1992 he was involved in a very serious road traffic accident in which he broke his neck and suffered other grave injuries. He is now, as is said in the affidavit, 100 per cent severely disabled and unable to earn his living.
In a second affidavit sworn on 14th March 197 Mr Webb said that as at that date the value of 38 Wentworth Avenue was £170,000 and 358 Essex Road was £105,000 and that the probate value of those properties had been agreed respectively at £150,000 and £85,000. He said that the net assets of the estate were estimated to be £316,000.
Mrs Tibbs is a market trader having a stall in Finsbury. On 14 May 1996 a bankruptcy petition was presented against her and she was adjudged bankrupt on 11 November 1996. Those facts were not disclosed by her and they came to light in an affidavit sworn by Mrs Gonga, who is a trainee solicitor, dated 17 March 1997. It also appears that it may be the case that the son, Jason, far from wishing to enrol in a computer course at the Pitman College was at the material time on the run from the police.
The claims of Mrs Tibbs and her son were settled at the door of the court on the day on which the case was listed before Mr Justice Bennett, 24 March 1997. The consent order was signed by counsel acting on behalf of the plaintiffs and counsel acting on behalf of the defendants. That consent order provided that within 28 days there should be paid from the estate the sum of £10,000 for the benefit of Mrs Tibbs and £6,250 for the benefit of Jason. It was recorded in the order that those sums would be accepted in full and final settlement of all claims which the plaintiffs might have in respect of the estate. It was a further term of the order that the costs of both the plaintiffs should be paid out of the estate.
Mrs Tibbs now challenges that order. She set out her grounds of appeal fully in her notice which is dated 4 October 1997. In her grounds she relies on a number of matters. First, she says that the two properties were undervalued and were sold for far more than the probate valuation and that there is further cash and valuables hidden away in a strong box. There was no evidence before this court of any further assets which have not been disclosed. Any increase in the value of the properties since the date of the hearing could not have any effect on the issue as to whether the settlement which was reached at the door of the court was or was not appropriate.
Mrs Tibbs then says that her costs have not been paid in full. The defendants say that that is incorrect. But even if Mrs Tibbs is right on that point, it again could not provide any ground for appealing against the order that was made.
Mr Jubb, counsel who was, until this case was called on before this court, representing Mrs Tibbs, has put before us a very helpful skeleton argument in which he sets out the...
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...Roofing Supplies)[2012] EWCA Civ 518, [2012] 1 WLR 2591, [2012] 4 All ER 259, [2012] CP Rep 32, [2013] 1 Costs LO 41. Tibbs v Dick[1999] 2 FCR 322, [1998] 2 FLR 1118, Tommey v Tommey [1983] Fam 15, [1982] 3 WLR 909, [1982] 3 All ER 385, (1983) 4 FLR 159, Fam D. Wyatt v Vince[2015] UKSC 14, ......
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Caletti v Desilva and Wakefield Quin Ltd
...legal advice is not generally a ground for setting aside a consent order, although in exceptional cases it may be: see Tibbs v Dick [1998] 2 FLR 1118 EWCA and Harris v Manahan [1997] 1 FLR 205 EWCA. Both decisions concerned consent orders made approving financial arrangements in matrimonial......
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Soogrim v Singh
...application. 23. In any event, a Court would be very slow to set aside a consent order based on a unilateral mistake. In Tibbs v Dick [1998] 2 FLR 1118, Mrs Tibbs contended that she was not advised by counsel that the payment being made to herself and her son in a consent order was in full ......
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Soogrim v Singh
...application. 23 In any event, a Court would be very slow to set aside a consent order based on a unilateral mistake. In Tibbs v. Dick [1998] 2 F.L.R. 1118, Mrs Tibbs contended that she was not advised by counsel that the payment being made to herself and her son in a consent order was in fu......