PROVING THINGS 160: DELAY MUST BE EXPLAINED: COURT CAN DIRECT THAT EXTRA EVIDENCE BE FILED

In Hendry v Hendry & Ors [2019] EWHC 1976 (Ch) Master Shuman refused the claimant’s application for an extension of time to bring proceedings under the Inheritance (Provision for Family and Dependants) Act 1975.

THE CASE

The claimant was married to the deceased. They separated in 2016 and the deceased subsequently made a will which made no provision for the claimant.  Probate was granted on the 29th August 2017. The time limit for bringing a claim under the Act is 6 months after the grant of probate. The claim was issued out of time. The claimant made an application for an extension of time.

THE EVIDENCE IN SUPPORT OF THE APPLICATION

The Master observed that there was a “paucity of evidence” about the reason that there was delay. He gave the claimant permission to file a supplemental statement.

    1. The thrust of Rosita’s evidence, as supplemented in counsel’s submissions, was that she was trying to avoid litigation and was impecunious. What that does not do, without more, is to explain why the claim was not brought promptly and why there was delay. It also does not explain why the claim was only issued against the beneficiaries when it should have been brought against the estate too.
    2. Following oral submissions I was concerned that this ground had not been addressed by Rosita’s legal representatives. Indeed Mr Willmer’s position was that as Rosita, on his argument, had demonstrated that she had negotiated, there was no prejudice to the defendants and Rosita had no other obvious remedy if permission was not granted then delay was not sufficiently significant to “rise to the top of the list of priorities”. “In those circumstances a comparatively trivial delay is neither here nor there and nothing turns on it”. That of course is not what the act says or indeed the case law. It seeks to diminish the importance of a substantive not procedural time limit.
    3. With objection from Ms McQuail I adjourned the hearing to enable Rosita to file and serve a short statement dealing with her failure to promptly apply for permission. I then indicated to the parties that I would either hear further oral submissions or they could file written submissions. They elected to deal with the matter in writing, although I do not know why those submissions were not referred to me promptly.
    4. Rosita’s solicitor, Zubair Dharamsi, rather than Rosita filed a witness statement dated 23 November 2018. That Ms McQuail observes was served shortly before the 10am 23 November 2018 deadline for service of such additional evidence. At paragraph 2 he confirmed that it was not until 23 March 2018 that “we appreciated negotiations were at an end and that a claim would have to be out-of-time.” There then follows a detailed chronology of the correspondence from 23 March 2018. It should have also set out a detailed chronology from the death of the deceased on 14 February 2017 and the grant of probate on 29 August 2017 to 23 March 2018. He confirms that on 23 March 2018 R&R notified their indemnity insurers of a potential claim. Mr Dharamsi also attaches a detailed email to Rosita dated 5 April 2017 setting out her potential claim and warning her that an application “must be made within six months of the Personal Representatives (Irwin Mitchell) obtaining a grant of probate to allow them to administer the estate. We will need to ensure that we have the application in place as soon as possible given the limitation period.”
    5. In her written submissions Ms McQuail makes the following apposite observations,
(1) It is surprising that Rosita did not file any evidence herself dealing with a failure to apply promptly for permission;
(2) Mr Dharamsi’s witness statement makes no reference to discussing matters with Rosita, taking her instructions or about her understanding of the time limit and her reasons for being late;
(3) Mr Dharamsi’s witness statement assumes that the court will simply be satisfied that there were ongoing negotiations until 23 March 2018.
(4) There is no adequate explanation as to why there was a further delay from 23 March 2018 to 27 April 2018 when the claim form was issued, albeit against Michael and Dorothy only.
  1. When R&R realised that they had missed the time limit, which is only when prompted by WDS on 23 March 2018, they should have issued a protective claim as soon as reasonably practicable thereafter. In fact what is clear from an email dated 3 April 2018 from Mr Dharamsi to Rosita is that at that stage he was intending to instruct a barrister to provide an “advice on the merits of proceeding based on the facts and circumstances of your case.” What R&R failed to do was keep WDS informed about what they were doing to remedy the position. That is a point specifically referred to by Megarry VC in Salmon, under the third guideline.
  2. Rosita knew in April 2017 that there was a time limit to bring her claim and that the time started when the grant of probate was made. Whilst R&R have accepted that they missed the time limit there has been a failure in the evidence, even given the opportunity afforded to Rosita to file further evidence, to explain why there was a delay and moreover why R&R did not keep WDS informed. I am not satisfied on the evidence that Rosita has given a sufficient explanation for the delay, in particular when there is no explanation in the evidence detailing the steps taken both following the death of the deceased and following the grant of probate until 23 March 2018.

WHEN THE COURT CAN (AND SHOULD) ORDER EVIDENCE OF ITS OWN MOTION

This was dealt with in a short postscript to the judgment.

POSTSCRIPT

  1. Ms McQuail objected to my direction that Rosita could file a short supplemental witness statement dealing with her failure to apply promptly for permission. I indicated that I would give reasons for my decision in the judgment.
  2. Under CPR 3.1 the court has very broad powers of management. In particular under CPR 3.1(m) the court may take any other step or make any order for managing the case and furthering the overriding objective. A claim must be dealt with justly and at proportionate cost.
  3. The effect of the determination of the application was of fundamental importance to the parties: refusing permission would prevent Rosita from bringing a claim against the deceased’s estate and allowing permission would prevent Michael and Dorothy from receiving the inheritance under the will until final determination of the claim or earlier settlement. It was a balancing act between the interests of the parties in the litigation.
  4. One of the agreed principles for determining permission was for the court to consider whether the claim had been brought promptly and the circumstances in which Rosita had sought permission. It is not so simplistic an exercise as to count up the number of days or weeks that Rosita had issued her claim late. As part of my decision making process it was important that this factor was specifically addressed by Rosita, it had not been addressed in her two witness statements or in counsel’s skeleton argument. The approach I adopted was that followed by Megarry VC in Re Salmon. In that case limited explanations were given for the delay, Megarry VC regarded them as inadequate and insubstantial and gave the widow an opportunity to supplement the evidence, in case there was a factor affecting her claim which had not been disclosed.
  5. In order to strive to do justice I, of my own volition, gave Rosita an opportunity to file a short witness statement dealing with the hole in her evidence as to promptness whilst permitting the parties to either make further submissions orally or in writing, they agreed the latter.