DENTON WATCH: CLAIMANT REFUSED RELIEF FROM SANCTIONS WHEN THE CLAIM FORM WAS NOT SERVED DUE TO SOLICITOR’S MISTAKEN BELIEF THAT IT WOULD BE SERVED BY THE COURT

In Phipps v Goulbourne (Re the Estate of Tetla Yvonne Goulboure otherwise Tetla Yvonne Butler) [2024] EWHC 130 (Ch) Master Teverson refused the claimant’s application for relief from sanctions.  The claimant failed to serve a claim form, in accordance with the terms of a peremptory order. The solicitor’s mistaken belief that the court would serve the claim form was not a good reason.  The claimant, effectively, was now stopped in its tracks.

“I am afraid that the Claimant has been let down by her solicitors. They should have known that in the Rolls Building Jurisdictions proceedings are not served by the court. That has been the position since 1 October 2017. An application for relief from sanctions should have been made much sooner. Further, and critically, the validity of the claim form should not have been allowed to expire without any application being made to the court to preserve its validity.”

WEBINAR ON SERVICE OF THE CLAIM FORM: WEBINAR 5th FEBRUARY 2024

The fact that this is the fourth  case about service of the claim form on the blog this year says much about how common an issue this is.  I am reviewing the cases on service of the claim form in a webinar on the 5th February 2024 “Service of the claim for cases: The last 14 months” .  Booking details are available here. 

THE CASE

The claimant brought an action to propound a copy of a will in which she was the sole beneficiary.

An order was made

    1. On 23 November 2022, having heard nothing further from Austen Jones, Batchelors on behalf of the Defendant applied by summons for an order pursuant to rule 48(2) of the Non-Contentious Probate Rules 1987 for an order for a grant as if the will were invalid. The grounds on which the order was sought were that since entering an Appearance the Claimant had not proceeded with reasonable diligence to propound the will.

 

    1. On 23 January 2023 the summons was dealt with by directions in the absence of the parties by District Registrar Whitby in Chambers at the District Probate Registry at Leeds. An order was made in the following terms:-

 

“IT IS ORDERED that unless the Respondent [Derina Tetla Phipps] issues and serves within 28 days of service of this order a probate action in Chancery Division of the High Court to propound the said paper writing dated 10 March 2010 in solemn form, a grant in respect of the estate of the above deceased will issue as if the said Will dated 10 March 2010 of the deceased is invalid.”

FAILING TO SERVE THE ORDER

The claimant failed to serve the order made.  An application for relief from sanctions was made.

THE CLAIMANT’S DELAY: A SERIOUS BREACH

    1. In the present case, on the Claimant’s case[1], there was a delay in service of the claim form until 28 July 2023. This was more than four months after the date by which the claim form was required to be served under the terms of the unless order. It was more than four months after the claim form was issued. The fact that the Defendant through service of the unsealed claim form with particulars of claim attached was made aware of the claim and the grounds for it, does not in my view make the delay in service insignificant. Until service of the claim form on the Defendant, the proceedings were effectively on hold. In the context of an application for an order under CPR 6.15, Lord Sumption JSC in Barton v Wright [2018] UKSC 12 said at [16]:-

 

“Although the purpose of service is to bring the contents of the claim form to the attention of the defendant, the manner in which this is done is also important. Rules of court must identify some formal step which can be treated as making him aware of it. This is because a bright line is necessary in order to determine the exact point from which time runs for the taking of further steps or the entry of judgment in default of them.”

  1. It is not in my view possible to classify the Claimant’s breach as anything other than serious and significant. There was a breach of an unless order and it was not a breach that was promptly remedied. On the contrary the breach was allowed to remain outstanding until after the validity of the claim form had expired.

NO GOOD REASON FOR THE BREACH

    1. The issue at the second stage of the inquiry is whether there was good reason for the default. From the email sent by Mr Austen-Jones to Mr Stotesbury on 2 March 2023 timed at 15.18, it would appear that Mr Austen-Jones’s then understanding was that the court would serve the claim form. If so, that was a mistaken understanding. Practice Direction 51O-The Electronic Working Pilot Scheme operates in the Chancery Division of the High Court which is part of “the Rolls Building Jurisdictions” as defined in paragraph 1.1. Paragraph 2.2A provides that:-

 

“In the Rolls Building Jurisdictions from 1 October 2017-

(a)for a party who is legally represented, Electronic Working must be used by that party to start and/or continue any relevant claims or applications;”

Paragraph 8 provides:-

“8.1The Court will electronically return the sealed and issued claim form, …… to the party’s Electronic Working online account and notify the party that it is ready for service.

8.2 Unless the Court orders otherwise, any document filed by any party or issued by the Court using Electronic Working in the Rolls Building Jurisdictions, the B&PCs District Registries, the Central Office of the King’s Bench Division ….or the Court of Appeal (Civil Division) which is required to be served shall be served by the parties and not the Court.”

The practice in the Chancery Division was set out in paragraph 4.15 of the Chancery Guide 2022 as follows:-

“The current practice in the ChD B&CPs London is that all claim forms are served by the claimant and not the court. Claimants must ensure that they serve a sealed copy of the claim form (downloading the sealed copy from CE-file) rather than the unsealed copy as submitted to the court to be issued (see Ideal Shopping Direct Ltd v Mastercard Incorporated [2022] EWCA Civ 14 and R (Good Law Project) v Secretary of State for Health and Social Care [2022] EWCA Civ 355).”

  1. I do not consider that any good reason has been shown for the default. The unless order required the Claimant to issue and serve a probate action in the Chancery Division within 28 days of service of the unless order. It is clear that by 9 February 2023 at the latest the Claimant was in a position to set about complying with the unless order. The claim form was not filed until 2 March. That left insufficient time for service. In any event, Mr Austen-Jones’s mistaken belief that the claim form would be served by the court cannot be relied upon as a good reason for the default.

ALL THE CIRCUMSTANCES OF THE CASE

    1. The third stage requires the court to look at all the circumstances of the case so as to enable it to do justly with the application but requires the court to attach particular weight to:-

 

“the need-

(a)for litigation to be conducted efficiently and at proportionate cost; and

(b) to enforce compliance with rules, practice directions and orders.”

    1. On behalf of the Claimant it was submitted that the effect of not granting relief would be extremely serious. It would prevent her from seeking to propound the will. In view of the terms of the unless order which provides that in the event of default a grant will issue “as if the will is invalid”, I agree that will be the effect if relief is not granted.

 

    1. The proportionality of the sanction needs to be considered against the full background. The Deceased died on 6 March 2020. The Claimant found a copy of the will in June 2020 and forwarded it to the Defendant. The Claimant was cited to propound the will in June 2022 two years later. By the date of the unless order it was more than three and a half years since the death of the Deceased. The effect of the unless order was to give the Claimant a final opportunity in which to issue and serve a claim to propound the will.

 

    1. There was partial compliance with the unless order in that a probate action was issued within the time period in the Chancery Division. The delay in service thereafter was however as I have concluded both serious and significant. Given the terms of the unless order, the Claimant’s solicitor should not have waited until 11 March 2023 before telephoning the court. He should not have waited a further two months before telephoning again. He most certainly should not have waited four months before sending any written communication to the court by which time the time for service of the claim form under CPR r. 7.5(1) had expired.

 

    1. On behalf of the Claimant, it was submitted by Ms Egan that the Defendant’s solicitors could have been more collaborative. Having reviewed the correspondence, I do not think it can be said that they acted in an obstructive manner. They were in my view entitled to wait for the claim form and other documents to be served. I do not consider they were under any duty to warn the Claimant’s solicitors that the time for service of the claim form would expire at midnight on 3 July 2023.

 

    1. The effect of the delay in service until after the expiry of four months from the issue of the claim form is likely to be that if relief from sanction were to be granted, the Claimant would have to discontinue the present claim and start a fresh claim. The effect of the breach is now that the claim form is no longer valid.

 

    1. In my view the Claimant before the unless order was made had had ample time in which to propound the will even allowing for the delay caused by the ill health and death in service of her solicitor. I do not think the fact this is a probate claim can result in any special rule being applied. Following the introduction of the Civil Procedure Rules, the court expects all claims, including probate claims to be conducted efficiently and in accordance with rules, practice directions and orders. In the present case, there has been a serious and significant breach of an unless order. The effect of granting relief after the expiry of the validity of the claim form would be to undermine the unless order whose purpose was to require a probate claim to be brought by no later than 28 days after service of the unless order.

 

    1. Further, when considering all the circumstances of the case, the court must have regard to the promptness or otherwise of the application for relief from sanctions. Mr Austen-Jones seeks to argue that the application was made promptly on the grounds that it was not until 21 July 2023 that information was provided by the court that the sealed claim form was on a portal. I have no hesitation in not accepting that argument. Mr Austen-Jones was aware of the terms of the unless order. He had received no notification from the court that it had served the claim form. An application for relief from sanction should have been made well before the expiry of four months from the issue of the claim form.

 

    1. On behalf of the Claimant it was submitted that the court should take into account that the failure to comply with the unless order was the fault not of the Claimant but of her solicitors. On behalf of the Claimant I was referred by Ms Egan to a sentence in paragraph 32 of Gloster LJ’s judgment in Mischon de Reya v Caliendo [2015] EWCA Civ 1029; [2015] Costs LR 849 where an appeal against a decision to grant relief against sanction was dismissed. Gloster L.J. stated:-

 

“Even if the claim against DLA was unanswerable, he [the judge] was nonetheless entitled to take the view, in the light of the comments made in paras 21 and 41 of Denton, and in all the circumstances of the case before him, that it was preferable to grant relief, rather than encourage what would inevitably be satellite litigation involving the respondents suing their own solicitors.”

    1. In my view the weight to be attached to the failure to comply being that of the party’s legal representative must depend on all the circumstances of the case. In paragraph 21 of Denton it is recorded that one of the criticisms made of the Mitchell guidance is that the result is that one party gets a windfall, while the other party is left to sue its own solicitors. In paragraph 41 the Court of Appeal in Denton made it plain that parties should not opportunistically and unreasonably oppose applications for relief from sanction in the hope that relief from sanctions will be denied and that they will obtain a windfall. However, as pointed out by Coulson LJ in Diriye v Boja at [69], Lord Dyson and Vos LJ were careful to say at [41] in Denton that mistakes should not be taken advantage of in circumstances where the failure was neither serious nor significant, where a good reason was demonstrated, or where it is “otherwise obvious that relief from sanctions is appropriate”. That is plainly not this case.

 

    1. In my view looking at all the circumstances there is no basis on which the court can grant the Claimant relief from sanctions. The clear purpose of the unless order was to give the Claimant a final opportunity in which to issue and serve a probate claim in order to propound the will. The delay in serving the claim form exceeded not only the time permitted under the terms of the unless order, but also the four month period permitted for service under CPR r. 7.5. That is particularly serious.The effect of granting the Claimant relief from sanctions now would be to drive a coach and horses through the unless order. The sanction imposed by the unless order was in my view proportionate given the time the Claimant had had in which to propound the will. The breach of the unless order has been serious and significant. No prompt action was taken to remedy it or to apply for relief from sanctions. As a result, the claim form is no longer valid and there is no basis on which the court can grant relief from sanctions without completely undermining the effect of the unless order.

 

    1. I am afraid that the Claimant has been let down by her solicitors. They should have known that in the Rolls Building Jurisdictions proceedings are not served by the court. That has been the position since 1 October 2017. An application for relief from sanctions should have been made much sooner. Further, and critically, the validity of the claim form should not have been allowed to expire without any application being made to the court to preserve its validity.

 

  1. I recognise that the effect of this judgment is that the Claimant has lost the opportunity to propound the will. The terms of the unless order made clear that was the sanction. In my view in all the circumstances the sanction was proportionate.

MAJOR PERSONAL REPERCUSSIONS FOR THE CLAIMANT

      1. The Claimant filed a witness statement made on 7 December 2023 a week before the hearing. The Claimant said a very personal consequence of relief being refused would be that she would not be able to keep her mother’s house. The Claimant says she grew up in that house and that her mother lived in it until she died. That cannot in my view be a determinative consideration or one which persuades the court to grant relief from sanctions where it would not otherwise do so. It appears from the correspondence passing between the parties in February 2021 that the Defendant was in occupation of the property as his home. There is prejudice to the Defendant in the disposition of the estate having been unresolved for so long. It was made clear in correspondence that if the will was admitted to probate, a claim under the Inheritance (Provision for Family and Dependants) Act 1975 would be pursued by the Defendant. There can therefore be no certainty that the Claimant would be able to require the Defendant to give up his home in any event.

 

  1. For those reasons I refuse the Claimant’s application for relief from sanctions. I will hear counsel on consequential matters on a date to be fixed