CIVIL PROCEDURE BACK TO BASICS 91: MAKE SURE YOUR CLIENT IS STILL ALIVE WHEN YOU ISSUE – AT CERTAINLY AT THE TIME OF TRIAL: A SITUATION THAT IS UTTERLY BIZARRE

The facts in  Amirtharaja & Anor v White & Anor [2021] EWHC 330 (Ch) are unusual to say the least.  Someone who had died two years prior to issue was included as a party in a claim form. The matter went to trial and nobody mentioned the death to the judge. However this comes back, most probably,  to a failure to consider the issue when a statement of truth was signed by a solicitor.  The following of the mandatory obligations set out in Practice Direction 22 would have avoided this problem.

“An extraordinary aspect of this case is that Mr William White died in September 2017 yet he was included as the First Claimant on the Claim Form when it was issued on 14 January 2019. At the trial no one referred to the fact that Mr William White remained a Claimant and the Judge clearly assumed in his judgment that he was still alive.”

THE FACTS

The action was a boundary/right of way dispute between neighbours. It went to trial in October 2019.  One of the parties named on the claim form was William White.  Mr White had died some two years prior to issue.

1. An extraordinary aspect of this case is that Mr William White died in September 2017 yet he was included as the First Claimant on the Claim Form when it was issued on 14 January 2019. At the trial no one referred to the fact that Mr William White remained a Claimant and the Judge clearly assumed in his judgment that he was still alive. Neither of the Respondents, both of whom gave evidence, mentioned that he had died. Mr Robin Howard, Counsel for the Respondents, also appeared for them at the trial and he did not know at the time that Mr White had died. It was only after the judgment, when the Appellants changed their lawyers, that the point was raised and they have since accused the Respondents and their lawyers of misleading the Court and committing an abuse of process. On 8 April 2020, Fancourt J heard an application by the Appellants for the proceedings to be struck out as an abuse of process but he refused to do so on the basis that the proceedings were not a nullity because of the other two proper Claimants. He did however allow the Appellants to amend their Grounds of Appeal to rely on the alleged misleading of the Court by the Respondents and to argue on this appeal that the claim was an abuse of process.

A FACTOR IN THE TRIAL JUDGE’S DECISION

1. 1. The issue about Mr White having died shortly after the purchase of Hollis House goes to the question of whether there were “exceptional circumstances” under para.3(3) of Schedule 4 to the LRA 2002 such as to justify the Judge refusing to alter the register even though a mistake had been made. The Judge relied in part on a finding that it was intended that Mr White would need to use the Passageway for access in his wheelchair to Hollis House. The Appellants say that this was obviously not something that should have gone into the balance and it affected the Judge’s decision on the existence of “exceptional circumstances“.

THE JUDGMENT IN RELATION TO ABUSE OF PROCESS

The death of one of the “parties” turned out not to be relevant to the appellant’s successful appeal, which was allowed on other grounds.

Grounds 5 and 6 – “exceptional circumstances” and abuse of process

1. 1. In the light of the above findings, the appeal will be allowed and the Judge’s Order set aside. That means that the remaining Grounds do not come into play. The question of “exceptional circumstances” is only relevant under para. 3(3) of Schedule 4 of the LRA 2002 if the Court is otherwise required to order the register to be rectified to correct a mistake.

1. 1. In the circumstances I will not say much about this but I do feel that I must address the issue that has given rise to a lot of ill-feeling, namely the failure to bring to the Court’s attention the death of Mr William White. This also incorporates the allegation in Ground 6 that the proceedings were an abuse of process.

1. 1. I should first of all say that I accept, as did Mr Thorowgood, that Mr Howard knew nothing of Mr William White’s death before, during and after the trial. I absolve him of any blame in this regard and it is regrettable that the Appellants have escalated their complaints against him. I have no doubt that if he had known he would have drawn it to the Judge’s attention, and certainly after hearing the Judge’s oral judgment delivered which referred in [1] and [58] to needing to use the Passageway for wheelchair access for Mr William White.

1. 1. All are agreed that the situation is utterly bizarre. On the Respondents’ side there was a change of the solicitor handling the litigation and even though the original solicitor knew that Mr William White had died, the other solicitor may not have done and he was responsible for issuing the proceedings in Mr William White’s name despite him having been dead for 2 years. He also signed two inaccurate statements of truth.

1. 1. The reason the Judge included those passages about the wheelchair was not because this was a point urged on him by Mr Howard; rather he picked it up for himself from the evidence of Mr Colin White who had said that the original reason for the purchase was because they thought that Hollis House would be adaptable to the needs of his elderly father and then “the access would be built for either wheelchair“. It is extraordinary also that Mr Colin White did not think to mention that his father had however since died but maybe he thought that everyone already knew that and he was only describing the situation at the time of the purchase. The Judge however did not know and clearly assumed that that was still the intention. What is even more difficult to fathom is that the Appellants knew, as did their solicitor advocate at the trial, and yet they did not say anything.

1. 1. To my mind this was just a very unfortunate series of events. The Respondents gained no benefit from including Mr William White as a Claimant. Nor were they seeking to put forward the wheelchair access point. I reject Mr Thorowgood’s suggestion that this was done deliberately and that the Respondents’ failure to correct the error was “contumelious“. As Fancourt J held on the Appellants’ application to strike out, the proceedings were not a nullity because of the presence of two proper Claimants. They were also not in my view an abuse of process.

1. 1. It did however have an impact on the Judge’s decision in relation to “exceptional circumstances” and the wheelchair access point added weight, in the Judge’s mind, to the Respondents’ side of the balance that had to be struck between the competing factors. I do not think it was a decisive factor but its removal would clearly affect the way the Judge approached this question. I do not think that it would have changed the Judge’s overall conclusion that the Appellants were more to blame for their lack of rigour in investigating the title to the Passageway during the conveyancing process than the Respondents.

1. 1. The Appellants say that the Judge’s reasoning on “exceptional circumstances” was flawed, quite apart from the wheelchair access point. They say that the Passageway was part of the registered title that they bought, that it had been so registered for more than 12 years when they bought and that they were entitled to rely on that registered title. Furthermore they had bought with the intention of redeveloping the site of the Office and the Workshop and had since obtained planning permission to do so. All these were powerful reasons for the existence of exceptional circumstances and they were not counterbalanced by anything similar on the Respondents’ side. The relative blame in relation to their respective conveyancing processes cannot detract from the fact that the Appellants thought they were acquiring title to the Passageway, which was necessary for their development plans. All the Respondents can perhaps say is that they too thought they were acquiring the Passageway with Hollis House.

1. I do not need to resolve these issues and I will not do so. I think an appellate court should be slow to interfere in a decision of the first instance trial judge who has had to balance a number of different factors. This has been described as a multi-factorial exercise – see Paton v Todd [2012] 2 EGLR 19. It is even more difficult to judge that balancing exercise where one of the factors that was taken into account is now apparent that it should not have been. I do not know how the Judge would have dealt with this if he had known that Mr William White had died two years earlier.

THE SIGNING OF TWO INACCURATE STATEMENTS OF TRUTH

This blog has looked, many times, at cases where solicitors have been criticised for signing a statement of truth.  The duties are set out in Practice Direction 22.  If the solicitor had considered this rule and sought to explain to the client in question the importance of the statement of truth (which is a mandatory obligation) this issue would (or should) have been appreciated at once.

3.7  Where a party is legally represented, the legal representative may sign the statement of truth on his behalf. The statement signed by the legal representative will refer to the client’s belief, not his own. In signing he must state the capacity in which he signs and the name of his firm where appropriate.

3.8  Where a legal representative has signed a statement of truth, his signature will be taken by the court as his statement:

(1) that the client on whose behalf he has signed had authorised him to do so,

(2) that before signing he had explained to the client that in signing the statement of truth he would be confirming the client’s belief that the facts stated in the document were true, and

(3) that before signing he had informed the client of the possible consequences to the client if it should subsequently appear that the client did not have an honest belief in the truth of those facts (see rule 32.14).

3.9  The individual who signs a statement of truth must print his full name clearly beneath his signature.

3.10  A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer.