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England and Wales Court of Appeal (Civil Division) Decisions

You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Picarda & Ors v Picarda & Anor [1995] EWCA Civ 39 (25 July 1995)
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Cite as: [1995] EWCA Civ 39
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BAILII Citation Number: [1995] EWCA Civ 39

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
(MR JUSTICE WARNER)

Royal Courts of Justice
Strand
London WC2
25th July 1995

B e f o r e :

LORD JUSTICE STAUGHTON
LORD JUSTICE ROSE
and
LORD JUSTICE PILL
____________________

PICARDA AND OTHERS
- v -
PICARDA AND ANOTHER

____________________

(Computer Aided Transcript of the Stenograph Notes of
John Larking, Chancery House, Chancery Lane, London WC2
Telephone No: 071 404 7464
Official Shorthand Writers to the Court)

____________________

MR J. MCDONNELL, QC and MR D. O'MAHONEY (instructed by Messrs Tringhams, London W1M 3FU) appeared on behalf of the Appellants
MR M. MANN, QC and MR B. CRAWFORD (instructed by Messrs Forsyte Kerman, London W1M 8AQ) appeared on behalf of the Respondents
____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    LORD JUSTICE ROSE: The plaintiffs appeal against the judgment of Warner J on 17th February 1993. He allowed an appeal by the first defendant against the dismissal, on 15th October 1992, of the first defendant's application to Master Barratt that the action be dismissed for want of prosecution. The second defendant was not a party to the strike out application, she did not appear before Warner J, nor was she represented before us, although we have seen a letter from her solicitor explaining why. She has her own application to dismiss, dated 1st March 1993, but this is currently adjourned pending the outcome of the present appeal.

    The action arises from a dispute between the children of the late Pierre Picarda (whom I shall refer to as Pierre) a Frenchman who died in March 1985, and his British-born wife, Winifred. They married in England in 1925 or 1926, and she died in August 1988. The three original plaintiffs (the second having subsequently died) and the first defendant are the four children of the marriage. The two defendants are the executors of Pierre's as yet unproved will made in March 1984, with a codicil in November 1984. The third named executor, the Royal Bank of Canada, has renounced. The first plaintiff is the only effective executor of Winifred's will, made in June 1983, though this, too, has not yet been proved.

    The plaintiffs' claim is based on French law. It alleges that Pierre was, throughout, domiciled in France, and the marriage resulted in community of goods under French law. It is claimed that Pierre's codicil, excluding the plaintiffs from benefiting from his estate, was invalid because, having four children, he had no power to dispose of one-quarter of his estate, and the inter vivos dispositions which he made, mostly to the first defendant between 1980 and 1984, were without his wife's consent and to the detriment of the community of goods.

    Accordingly, it is claimed that the first plaintiff, as executor of Winifred's estate, has a cause of action against Pierre's estate, and both plaintiffs, as children, have a cause of action against the first defendant. An account, consequential orders for payment and damages for conversion are sought.

    The defence denies that Pierre was domiciled in France, and that the marriage was in accordance with the system of community goods. It admits the inter vivos dispositions, including 8 kilogrammes of gold, some money in a Canadian bank account, and some bearer shares in Luxembourg. The counterclaim primarily seeks proof of Pierre's will and codicil, and pronouncement against Winifred's will on the grounds of her want of testamentary capacity and approval of the will's contents. Orders are also sought in the counterclaim in relation to Pierre's assets outside the jurisdiction and the French judicial administrator of Pierre's estate.

    Against that background, I turn to the history of the litigation. The writ was issued on 10th February 1989, one of the main inter vivos dispositions having apparently taken place on 12th February 1983. There had been earlier proceedings in Paris in which the first defendant had not participated. The writ was served on 9th February 1990, the last day of its validity, and by that time the second plaintiff had died. Within days, both defendants had filed an acknowledgment of service. On 2nd March time for service of the statement of claim expired. On 27th March the defendants issued a summons under Order 19 seeking dismissal of the action for failure to serve the statement of claim. On 25th April that summons, together with another seeking dismissal for want of prosecution, came before Deputy Master Weir. He dismissed the applications, and in particular the application to dismiss, but put the plaintiffs on terms. In particular, he made an Unless Order for service of the statement of claim by 9th May 1990. It was served on that date. A defence and counterclaim on behalf of each defendant was served in June within the period ordered. In July the first plaintiff was discharged from bankruptcy, although subsequently, in March 1993, he was again adjudicated bankrupt and his trustee has assigned to him the conduct and benefit of these proceedings.

    On 27th July a reply and defence to the counterclaim was served 9 days late, after a chasing letter from the defendant's solicitors. On 11th August the pleadings closed. This, by virtue of the Deputy Master's order, was 14 weeks later than they would normally have closed in accordance with the rules. Discovery was due, pursuant to the order, by 22nd September, which was 42 days instead of the usual 14 after close of pleadings. In early December the plaintiffs, who until then had been represented by solicitors, and intermittently counsel, both indicated that they would henceforth be acting in person.

    In February 1991 both plaintiffs served lists of documents 5 months late. On 19th March a summons for directions came before Master Barratt, who gave leave to amend the statement of claim and for consequential amendments to the defence. He ordered the defendants to serve their list of documents within 42 days, with inspection 7 days thereafter. On 2nd April the amended statement of claim was served. In mid-April amended defences were served on the first plaintiff. On 30th April the first defendant's list of documents was served. On 3rd May the second defendant's list was served.

    In early May 1991 the plaintiffs queried a claim for privilege in relation to some of the first defendant's documents, and there was still an on-running saga in relation to this when the appeal came before Warner J. Subject to this, the plaintiffs inspected the first defendant's documents and vice versa in May 1991. On 16th May the second plaintiff wrote saying he would serve a further and better list of documents, but he was then in hospital for a month until early July. In November 1991 the first plaintiff started inspection of the second defendant's documents, and the first defendant's solicitors complained of the continuing absence of the second plaintiff's further list. This was served defectively because of a computer fault, of which the second plaintiff knew, in March 1992.

    In April 1992 the plaintiffs completed inspection of the second defendant's documents. In May 1992 the first defendant's solicitors wrote to the second plaintiff, pointing out the defects in his list. In June the second plaintiff served a further list, and also sought, by means of a defective summons, to challenge the privilege claimed by the first defendant. On 3rd July the defendants issued their summons to strike out, which founds the present appeal.

    While the appeal to Warner J was pending, the action was set down in January 1993, pursuant to leave granted the previous month. Warner J directed himself that he had to consider whether there had been inordinate and inexcusable delay such as to cause a substantial risk that a fair trial would not be possible. He found inordinate delay to the extent of 18 months, 16 of which (2 in serving the statement of claim, 5 in serving the first list of documents, and 9 in serving the amended list) were inexcusable. He made that finding in the context of the writ having apparently been issued just within the limitation period and served on the last available day, so that it was incumbent on the plaintiffs to get on with the action thereafter.

    As to prejudice, he concluded that there was a substantial risk that a fair trial would not be possible because of the age and possible death before trial of two relevant and material witnesses; a Mr Shaw, who was 72 and suffering from cancer, and a Mrs McLean, who was 76. In fact, Mr Shaw died in March 1995. The judge further concluded that, if the action were struck out, any new action, so far as framed in tort, would be statute-barred after 6 years, and in any other respect could not disclose a reasonable cause of action.

    Finally, he held that it would not be open to the plaintiffs to plead in their defence to any remaining counterclaim the facts relating to the inter vivos disputes, because these were not referred to in the prayer for relief in the counterclaim. He therefore allowed the appeal and dismissed the action against the first defendant.

    The plaintiffs were unrepresented before the judge.

    Before this court Mr McDonnell, QC, appears for them. His first submission is that a 12-year limitation period from the date of Pierre's death applies to the plaintiffs' claims against Pierre's estate, because this is the period prescribed by sections 23 and 22(a) of the Limitation Act 1980 in relation to an action for an account:

    "...in respect of any claim to the personal estate of a deceased person, or to any share or interest in any such estate".

    That 12-year period, submits Mr McDonnell, runs from not earlier than Pierre's death in March 1985.

    Having regard to what was said in Birkett v. James [1978] AC 297, in particular by Lord Diplock at 321B, Lord Salmon at 328D, and Lord Edmund-Davies at 334B, it would be inappropriate to dismiss the present claim as new proceedings could be instituted before the 12-year limitation period has elapsed.

    Mr McDonnell identifies two such kinds of claim against Pierre's estate. First, that enabling the first plaintiff, as Winifred's executor, to make a claim against Pierre's estate for recovery of the assets disposed of by Pierre inter vivos without Winifred's consent in breach of the French law of Community of Goods contained in article 1422 of the French Civil Code. Secondly, that enabling both plaintiffs each to claim, as children, three-sixteenths of Pierre's estate in accordance with article 913 of the Civil Code.

    Mr McDonnell's second submission is that the defendants' counterclaims necessarily give rise to the same issues as are raised in the claims: namely Pierre's domicile at marriage and death; whether there was community of property following the marriage; what property there is in Pierre's estate; the rights of the three surviving children to share in it; whether Pierre's 1984 codicil was vitiated by the French law of dol (which is in some respects similar, but is not identical, to the English law of undue influence); and Winifred's testamentary capacity and knowledge and approval of the contents of her will. It would therefore, submits Mr McDonnell, be inappropriate to dismiss the claim if these issues remained for determination on the counterclaim.

    Mr McDonnell accepts that there is no authority to support the proposition that similarity of issues with a counterclaim is, in itself, a reason for not striking out a claim which should otherwise be dismissed for inordinate, inexcusable and prejudicial delay. The authorities referred to in the notes at page 475 of the White Book might, at first sight, suggest the contrary. But, without taking the Court to them, Mr McDonnell sought to distinguish Zimmer v. Zimmer [1969] 1 WLR 1349, because of the aspect of administering an estate in the present case, and Westminster v. Clifford Culpin [1987] 137 NLJ 736, because the plaintiffs were there permitted to rely on their struck out claim, albeit only to the extent of set-off.

    His third submission is that the judge was wrong to find inordinate and inexcusable delay to the extent of 16 months as he did. Mr McDonnell's analysis of the history of the litigation invited the conclusion that only 6 months could properly be characterised as inordinate and inexcusable.

    His fourth submission is that there was no prejudice to a fair trial, because 6 months' delay in February 1993 would not materially affect the ability of the two elderly witnesses to give evidence, and, had it not been for the present appeal and delays attributable to the first defendant obtaining legal aid, the trial would have taken place in November 1994.

    Finally, Mr McDonnell rejected the contention advanced in the respondents' notice, made in reliance on the observations of Lord Browne-Wilkinson in Roebuck v. Mungovin [1994] 2 AC 224, at 234E and F, that the judge should have found further prejudice from continuously fading recollection.

    So far as Mr McDonnell's third, fourth and fifth submissions are concerned, they all, as it seems to me, bear on the judge's exercise of discretion. There is no suggestion that the judge in any way misdirected himself as to the law, or improperly took into or left out of account any relevant factor. It follows, in my judgment, that his conclusions as to the presence of inordinate and inexcusable delay, and as to what did and did not give rise to consequential prejudice are unassailable.

    As to similarity of issues between claim and counterclaim, I, for my part, accept the submission of Mr Mann, QC, for the first defendant, that, although the essential validity of Pierre's will and codicil and the effectiveness or otherwise of their purported distribution of his estate depend on domicile and French law, both as to community of goods and non-disposability of one-quarter of the estate, none of these matters affects the formal validity of the will and codicil, which is not in issue between the parties save to an ill-defined extent in relation to the effect of dol on the codicil. I say "ill-defined", because, although there is a reference to dol in the further and better particulars of the statement of claim, the statement of claim itself does not plead dol. There is not, as it seems to me, any such similarity of issues between claim and counterclaim as would, in itself, save the statement of claim if it should otherwise be struck out for want of prosecution.

    This leaves Mr McDonnell's first submission. In so far as it relates to the claim to recover the inter vivos gifts, this, in my judgment, is not a claim to the personal estate of a deceased within section 22 of the Limitation Act, but is a claim in conversion which has to be brought within 6 years. Any new action would, therefore, now be statute-barred. It should, therefore, as the judge held, in my judgment be struck out.

    That leaves the claim for three-sixteenths of the estate. The first thing to be said about this is that it was not, as Mr McDonnell concedes, effectively identified before the judge. It is not, in consequence, in the least surprising that the judge had great difficulty in understanding the somewhat Delphic provisions of the writ and statement of claim. The writ refers only to a claim for an account of the assets of Pierre's estate in the hands of the defendants. The only presently relevant parts of the statement of claim are paragraphs 7, and to some extent paragraph 17, which are in these terms. Paragraph 7 says:

    "Mr Pierre Picarda purported to make a codicil of his said will on 14th November 1984 purporting to disinherit the plaintiffs Guy Reginald Pierre Picarda and Noel Bernard Jacques Peter Picarda and to bequeath their shares in trust for all the grandchildren of Mr Pierre Picarda in equal shares at 21 years of age, but the said codicil was not effective for that purpose because Mr Pierre Picarda was not competent under the law of France thereby to override the rights of those two persons as his heirs".

    Paragraph 17 is in these terms:

    "By reason of matters aforesaid the Plaintiffs are entitled to an account of all monies, securities, documents and other assets forming part of the estate of Mr Pierre Picarda or falling into the community of goods which existed between him and Mrs Picarda which may have come into the hands of the Defendants or either of them or received by any other person on behalf of or on account of the Defendants or either of them; and for payment of any sum found due on such an account".

    It is only when the further and better particulars of paragraph 7 are scrutinised that they are found to contain, cited among other articles of the French Civil Code, article 913, which in its material part says, in relation to a deceased's assets:

    "...'Gifts whether by deed inter vivos or by Will cannot exceed...one quarter if he leaves three or more children".

    Such a claim now having been identified by Mr McDonnell, it is in my judgment one which can be said properly to fall within sections 22 and 21(a) of the Limitation Act; that is, the limitation period applicable is 12 years from the date of Pierre's death. It follows that if the present claim were to be wholly dismissed, further proceedings in relation to this part of the claim could be started before March 1997. In accordance with Birkett v. James, therefore, this, and in my judgment this alone, is a reason for not dismissing those parts of the statement of claim which relate to a share in one quarter of Pierre's estate.

    It may be that if, as the first defendant contends, Pierre's estate is of no value, the plaintiffs will have won a pyrrhic victory. However, whether or not the estate is of value cannot, in my judgment, as Mr Mann sought to suggest, be determinative of whether a claim against it is capable of being pursued or should be struck out.

    To the limited extent indicated, therefore, I would allow this appeal and invite the parties, in due course, to agree the appropriate deletions from the pleadings.

    LORD JUSTICE PILL: I agree.

    LORD JUSTICE STAUGHTON: During the period from 1980 to 1984, Pierre Picarda made gifts to Hubert. If that was a breach of the matrimonial property regime between Pierre and his wife, Winifred, she had at once a cause of action against Hubert, and for all I know against her husband as well. That cannot have been a cause of action in claiming the personal estate of a deceased person at that time, because no relevant person was dead. It must have been some other cause of action.

    That persuades me that the limitation period for that cause of action cannot be that provided by section 22 of the Limitation Act 1980. Accordingly, I agree with the order proposed by Rose LJ for the reasons that he has given.

    The upshot, I suppose, is that the appeal is allowed in part and dismissed in part, and we are relying on counsel to draw up some order which reflects that in detail.

    MR MANN: I understand, my Lord, that it may be necessary to incorporate in that something that will apply to the Chancery Division, but my learned junior will sort that out, I am sure, with Mr McDonnell.

    MR MCDONNELL: My Lord, we have both risen together, which tends to happen when there is some doubt as to who might have been regarded as having won in regard of costs.

    MR MANN: I simply rose because my Lord was speaking to both of us.

    MR MCDONNELL: What I would suggest is this: until we have digested the implication of your Lordships' judgment it would be a mistake to suggest off the top of one's head what the consequences for the statement of claim are.

    My submissions will have indicated to your Lordship, though we never got to this point, that the plaintiffs' present advisers would regard it as helpful to everyone for the statement of claim to be amended to bring out rather more clearly the case which I was submitting to your Lordship lay beneath it. My Lord, your Lordships' conclusions have lead to a necessity to amend it in any event. One cannot feel any optimism about the prospect of being able to agree all the necessary amendments, but we will of course try, as your Lordship has indicated. My Lord if we are not----

    LORD JUSTICE STAUGHTON: If you cannot agree, you may come back at 4.30 next Monday.

    MR MCDONNELL: May I suggest, my Lords, that we leave over the question of costs until we see where we get to?

    LORD JUSTICE STAUGHTON: Both sides are legally-aided, are they?

    MR MCDONNELL: They are, my Lord, but an order for costs would affect the ultimate incidence of the legal aid charge, and in a case where the fund----

    LORD JUSTICE STAUGHTON: I think we ought to decide the question of costs now. I do not see anything would be any clearer.

    MR MCDONNELL: In that case, I would obviously ask for my costs here and below.

    MR MANN: My Lord, so far as legal aid is concerned, I understand from my learned friend Miss Curzon, in fact, that both plaintiffs were legally-aided from September 1993, so that is after the notice of appeal was lodged. Mr Picarda was legally-aided from 28th March of this year. There are, therefore, in any event, relevant costs apart from legal aid taxation and the usual orders, of course; so far as the plaintiffs are concerned, up to September 1993, and so far as Mr Picarda is concerned, up to March of this year.

    My Lord, in view of Rose LJ's judgment and his reasoning, I would respectfully suggest that we have significantly won the appeal. The manner in which we have not been successful, and the reasons for it, stem from the unarticulated manner in which the claim was put before Warner J, which has only yesterday been adeptly put, and persuasively put, by Mr McDonnell. So far as the appeal is concerned, substantially we would submit that we have won and we should be entitled to our costs.

    LORD JUSTICE STAUGHTON: Yes, I see.

    MR MANN: My Lord, there is one other matter. The respect in which Mr McDonnell's counsel won concerns the taking of an account, effectively, of an estate. Normally speaking, executors who are subjected to an order of that kind will get their costs from the estate. I would not expect, in those circumstances, any order for costs to be made on this occasion.

    LORD JUSTICE STAUGHTON: I do not know that this case is all that normal in that respect.

    MR MANN: It is not normal at all, I accept that.

    MR MCDONNELL: My Lord, the reason I suggested we leave over the question of costs until the form of amendments which would be permitted by your Lordships is established, is that, anticipating in this respect something which may have to be dealt with next Monday, we understand Rose LJ's reasoning -- I am not so sure about your Lordships observations at the end, but we will obviously be giving that careful thought -- we understand that Rose LJ's reasoning, in effect, or in substance, to leave our claim, having regard to the relevant French and English law, intact. Because the French code, if we establish that Pierre was domiciled within France, will have the effect that the estate includes all the inter vivos gifts; that is perfectly clear from express provisions of the code. I have not sought to introduce further evidence on the appeal, but the amendments will refer to provisions which are black and white -- which, of course, is one of the advantages of a code -- and which, if necessary, if there is any argument about the propriety of the amendments, will be shown to your Lordships.

    LORD JUSTICE STAUGHTON: I see.

    MR MCDONNELL: My Lord will remember that my learned friend referred yesterday to the Foreign Limitation Periods Act, and said that it was likely that a foreign limitation period would apply. We agree with that.

    LORD JUSTICE STAUGHTON: You are saying we have not decided anything against you, and therefore you should have the costs?

    MR MCDONNELL: Of course not, my Lord. Your Lordships have rejected a number of my submissions. However, if what matters is the substantive effect of the appeal, and if your Lordships are -- I am simply mentioning these points now in case your Lordships were inclined to accept what I think my learned friend was suggesting, that in substance, as opposed to counting submissions, that in substance his clients have won, that is not our perception of the matter, but that may depend on what your Lordships regard as an appropriate way to amend the statement of claim.

    LORD JUSTICE STAUGHTON: Yes, I see. Thank you. We will retire to consider this.

    (A short adjournment)

    LORD JUSTICE STAUGHTON: By way of explanation of the judgments that have been given, I am authorised to say that insofar as there is a claim to recover money or property that was given to Hubert by Pierre during his lifetime, that claim is dismissed and therefore should be removed from the statement of claim. If and insofar as there are still proceedings as to the distribution of the estate of Pierre, if there are any, and if the existence of inter vivos gifts is a relevant factor to be taken into account in deciding how that estate should be distributed in accordance with whatever system of law applies, that will still be a live issue. We trust that that explains the situation.

    As to the costs, the right order, in our opinion, is that the order for costs in the court below should stand. There will be no order for costs of the appeal to this court, except, of course, legal aid taxation for both parties.

    MR MANN: I am very much obliged, my Lord.

    MR MCDONNELL: My Lord, by way of further clarification, and I know this is a somewhat unconventional approach to a judgment your Lordships have just delivered, but by way of further clarification may I say that we will be approaching the amendment process on the footing that the dismissal of the claim that your Lordships have decided to dismiss is a dismissal under the jurisdiction to dismiss for want of prosecution, which does not give rise to any estoppel per rem judicatum.

    LORD JUSTICE STAUGHTON: That you will be able to argue another day when you have looked at our judgments.

    MR MCDONNELL: Quite.

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