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Cite as: [2016] EWHC 1309 (Ch)

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		Neutral Citation Number: [2016] EWHC 1309 (Ch)
		Case No: HC-2014-000305

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

03/06/2016

B e f o r e :

MASTER MATTHEWS
____________________

Between:

	Peter Malcolm Jones	Claimant
	- and -
	David Charles Longley Richard Longley Jane Eagers	Defendant

____________________

Michael Bowmer (instructed by Mills & Reeve LLP) for the Claimant
The First Defendant appeared on his own behalf
and on behalf of the Second and Third Defendants
Hearing dates: 20-21 January 2016
____________________

HTML VERSION OF JUDGMENT
____________________

Master Matthews :

Introduction

This is my judgment on the Claimant's application by notice dated 9 November 2015 to strike out the counterclaim of the First Defendant dated 29 September 2015 under CPR rule 3.4(2)(a) and (b) for non-compliance with my Order dated 30 July 2015. It is a further instalment in long-running litigation between the beneficiaries of a deceased's estate (including one of the original co-executors) and the other co-executor, a solicitor, since removed from office. The Claimant's Notice continues

"The First Defendant if so advised file and serve a properly particularised Counterclaim complying with that Order".

At the hearing the Claimant asked to amend the notice to include an application for summary judgment under CPR Part 24, supported by the second witness statement of Lisa Taylor dated 14 January 2016, para 19. I refer to this further below.

The application is supported by three witness statements of Lisa Taylor, a solicitor of Mills & Reeve LLP, dated 9 November 2015, 14 January 2016 and 15 January 2016 respectively. There is also a short witness statement of Emily Lake of Cornfield Law LLP, also dated 9 November 2015. This explains that her firm remains the solicitors on the record in this litigation, and still has conduct so far as concerns the claim under s 50 of the Administration of Justice Act 1985. However Mills & Reeve LLP has been instructed to act for the Claimant in respect of the counterclaim.

The application is opposed by a witness statement of the First Defendant (his third in these proceedings) dated 7 December 2016. The First Defendant acts in person. He has also written to the Court by letter dated 15 January 2016, which is also relevant to this matter, and produced a further witness statement, dated 22 February 2016, in relation to the Claimant's application by notice dated 5 February 2016 to which I refer below. I record here that the First Defendant was the sole defendant in these proceedings until the order of Deputy Master Mark of 3 February 2015, by which the Second and Third Defendants (the First Defendant's siblings, and each entitled with him to an equal share under the will) were joined as parties. However, for the sake of clarity, I will refer to him throughout as the First Defendant.

The hearing of the application began on 20 January 2016, when Mr Michael Bowmer of counsel appeared for the Claimant, and the First Defendant appeared in person. As I understood it, although the representation slip did not say so expressly, the First Defendant was appearing on his own behalf and also on behalf of the other Defendants (see further para 19 below). There was not enough time to complete submissions on that day, but because of an unexpected gap in my diary it was possible for us to continue on 21 January 2016. Even so, there were some loose ends, and I invited the parties to let me have written submissions after the hearing, which I received on 28 January 2016 from the First Defendant and on 4 February 2016 from the Claimant. I am sorry about the delay in preparing this judgment since then.

Before I move on to more substantive matters, I must deal with a procedural issue. At the conclusion of the hearing on 21 January 2016 I directed that any written submissions be filed and served in accordance with a timetable. The Claimant was to file and serve his submissions by 4 pm on 4 February 2016. A hard copy of those submissions was filed with the court before that time limit. Soft copies were emailed to three addresses for the three Defendants. Unfortunately they were despatched by a secretary employed by the Claimant's solicitors at 4.03pm on 4 February 2016. Even more unfortunately, the address typed for the First Defendant was incorrect, in omitting one letter (the other addresses were correct). The next morning (5 February 2016) the secretary saw an error message, returning the undelivered email, and at 8.39 am sent a further soft copy to the First Defendant's correct email address.

The same day the Claimant issued an application notice seeking relief from sanctions, supported by the fourth witness statement of Lisa Taylor, dated 5 February 2016. The First Defendant objected in a written statement of 22 February 2016 (to which I refer further below). The Claimant adduced a further witness statement from Lisa Taylor (her fifth), dated 23 February 2016. The papers were ultimately placed before a deputy master, who on 1 April 2016 made an order granting relief.

For myself, I do not think that any application for relief was needed, since there was no order that the Claimant file a submission, and if he did not want to there would be no breach of my order. Moreover there was no sanction which would bite automatically in case of failure to comply, although if the submissions were late the Court might have decided not to take them into account. In the language of CPR rule 3.8(3), my order neither required the Claimant to make a written submission, nor specified a sanction for failure to do so. Nevertheless, the matter was dealt with in that formal way.

Background

The context in which this application is made is as follows. Charles Henry Longley ("the deceased") died on 9 May 2010, and probate of his will dated 24 November 1994 was granted to the Claimant and the First Defendant as co-executors on 4 May 2012. The relationship between the two co-executors broke down, and the administration of the estate stopped. On 17 January 2014 the Claimant issued this claim by Claim Form under Part 8 of the CPR, for an order under the Administration of Justice Act 1985, section 50, removing the First Defendant as co-executor.

After a number of hearings before different masters, the matter came before me for the first time in May 2015. At a further hearing before me, on 30 July 2015, I made an order on the Claimant's claim, for which I gave reasons at the time, removing the Claimant as co-executor. However, those reasons involved no criticism of the Claimant. The result was to leave the First Defendant as sole executor and personal representative of the estate of the deceased ("the Estate"). I dealt with the costs of the claim by way of written submissions, leading to a written judgment on costs of 20 November 2015, with the neutral citation number [2015] EWHC 3362 (Ch).

However, long before the order of 30 July 2015, at a directions hearing on 8 April 2014, Deputy Master Bartlett gave the First Defendant (then simply the defendant, of course) "permission if so advised to file and serve a counterclaim settling out what remedies he seeks and brief reasons verified by a statement of truth by 22 April 2014". Permission was needed because this was a Part 8 claim: CPR r 8.7.

On 21 April 2014 the First Defendant filed in court two documents, one described as a counterclaim (but also as "DCL 5") and supported by a statement of truth, and the other as "DCL 6". The former was some 17 pages long (mostly single-spaced), and the latter some 80 pages. Both documents refer to other documents prepared by the First Defendant and filed in court at an earlier stage in the proceedings. Indeed, the former document ends with these words:

"This Counterclaim is to be read in conjunction with evidence already filed and served, namely DCL1, DCL2, DCL3, DCL4 and DCL Annex 01 – DCL Annex 08, 08a, 08b and 08c materials all filed and served on February 28^th 2014".

Collectively the documents referred to there run to about 2000 pages.

The First Defendant is not a lawyer. In both his original witness statement and in his counterclaim the First Defendant described himself in these terms:

"Former Home Office HM Prison Service Psychologist/Semi-retired Research Psychologist, Elder Son of, and Personal Representative of the Estate of, Charles Henry Longley Deceased".

Unfortunately, the style of the witness statement and of the counterclaim in the original version is both pedantic and prolix, meandering and lacking in particularity in important places. There are no headings or paragraph numbers, and, although there are separate paragraphs, they are often very long. The counterclaim thus pleaded did not comply with the procedural rules, practice directions and other guidance (which so far as relevant are set out in paras 15-18 below). As a result it was not possible to get a clear or precise hold of the substance of the claims which the First Defendant was seeking to make against the Claimant. Coupled with the fact that the First Defendant is not trained to be able to sift out the legally relevant from the irrelevant, this in turn made it difficult for the Claimant to plead to the counterclaim. Unsurprisingly the Claimant did not do so before the hearing of 30 July 2015 to which I have already referred.

At the conclusion of that hearing, and at the request of the Claimant, I directed that

"By 4 pm on 30 September 2015, the First Defendant shall file and serve on the Claimant a brief statement of case summarising his counterclaim, which shall comply with the requirements of part 16 of the Civil Procedure Rules 1998 and its Practice Direction, and with the requirements of Chapter 2 and Appendix 2 of the Chancery Guide."

My intention was that the First Defendant should prepare a short but well-organised statement of his counterclaim, which could refer to and use the existing counterclaim as voluntary further particulars, thus acting not only as a statement of case in its own right, but also as a kind of road-map and index to the existing documents, which need not then be wasted. The First Defendant appears however to have misunderstood my purpose. In paragraphs 5 and 7 of his witness statement dated 22 February 2016, he says that I directed that the original counterclaim stand as the particulars of the claim, and that a short summary be provided to aid transparency.

The rules about statements of case

The relevant rules about pleading claims (which apply also to counterclaims) are contained in CPR r 16.4, PD 16 para 8.2, and the Chancery Guide, in what were then Paras 2.8, 2.10 and Appendix 2 (in the 2013 edition), and are now paras 10.1, and 10.4 – 10.17 (in the 2016 edition).

CPR r 16.4 provides:

"(1) Particulars of claim must include –

(a) a concise statement of the facts on which the claimant relies;

(b) if the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2);

(c) if the claimant is seeking aggravated damages or exemplary damages, a statement to that effect and his grounds for claiming them;

(d) if the claimant is seeking provisional damages, a statement to that effect and his grounds for claiming them; and

(e) such other matters as may be set out in a practice direction.

(2) If the claimant is seeking interest he must –

(a) state whether he is doing so –

(i) under the terms of a contract;

(ii) under an enactment and if so which; or

(iii) on some other basis and if so what that basis is; and

(b) if the claim is for a specified amount of money, state –

(i) the percentage rate at which interest is claimed;

(ii) the date from which it is claimed;

(iii) the date to which it is calculated, which must not be later than the date on which the claim form is issued;

(iv) the total amount of interest claimed to the date of calculation; and

(v) the daily rate at which interest accrues after that date.

So far as material, PD 16 para 8.2 provides:

"The claimant must specifically set out the following matters in his particulars of claim where he wishes to rely on them in support of his claim:

(1) any allegation of fraud,

(2) the fact of any illegality,

(3) details of any misrepresentation,

(4) details of all breaches of trust,

(5) notice or knowledge of a fact,

(6) details of unsoundness of mind or undue influence,

(7) details of wilful default, and

(8) any facts relating to mitigation of loss or damage."

The Chancery Guide, in what in the 2013 edition were Paras 2.8, 2.10 and Appendix 2, provides:

"2.8 In addition to the matters which PD 16 requires to be set out specifically in the particulars of claim, a party must set out in any statement of case:

(1) full particulars of any allegation of fraud, dishonesty, malice or illegality; and

(2) where any inference of fraud or dishonesty is alleged, the facts on the basis of which the inference is alleged.

2.10 In the preparation of statements of case, the guidelines in Appendix 2 should be followed.

Appendix 2

1. The document must be as brief and concise as possible.

2. The document must be set out in separate consecutively numbered paragraphs and sub-paragraphs.

3. So far as possible each paragraph or sub-paragraph should contain no more than one allegation.

4. The document should deal with the case on a point by point basis, to allow a point by point response.

5. Where the CPR require a party to give particulars of an allegation or reasons for a denial (see rule 16.5(2)), the allegation or denial should be stated first and then the particulars or reasons listed one by one in separate numbered sub-paragraphs.

6. A party wishing to advance a positive case must identify that case in the document; a simple denial is not sufficient.

7. Any matter which if not stated might take another party by surprise should be stated.

8. Where they will assist, headings, abbreviations and definitions should be used and a glossary annexed.

9. Contentious headings, abbreviations, paraphrasing and definitions should not be used; every effort should be made to ensure that headings, abbreviations and definitions are in a form that will enable them to be adopted without issue by the other parties.

10. Particulars of primary allegations should be stated as particulars and not as primary allegations.

11. Schedules or appendices should be used if this would be helpful, for example where lengthy particulars are necessary.

12. The names of any witness to be called may be given, and necessary documents (including an expert's report) can be attached or served contemporaneously if not bulky (PD 16; Guide paragraph 2.12). Otherwise evidence should not be included.

13. A response to particulars stated in a schedule should be stated in a corresponding schedule.

14. Lengthy extracts from a document should not be set out. If an extract has to be included, it should be placed in a schedule.

15. The document must be signed by the individual person or persons who drafted it, and not, in the case of a solicitor, in the name of the firm only. It must be accompanied by a Statement of Truth."

The new counterclaim

On 29 September 2015, the First Defendant filed and served a fresh statement of case in purported compliance with my direction of 31 July 2015. In the first paragraph on page 2 it stated that it was "filed and served on behalf of the Beneficiaries (the three Defendants)". (I should say that there are statements to similar effect in other documents filed by the First Defendant.) This statement of case was some 23 pages long, again single-spaced, and again without individual paragraph numbers. It comprised an "Introduction to Statement of Case" (1.5 pages), a "Statement of Case" (8.5 pages) and an "Elaborative context for CC" (12.5 pages). There were however some cross-headings and numbering of sections of the document. There were also a further 32 pages of further documents exhibited (without any coversheet, or index) to this pleading.

Looking simply at the first part (1.5 pages) of the new document, the first paragraph is simply scene-setting. The second and third set out in summary form the nature of (apparently) three separate causes of action: one against the Claimant and his former law firm Stuckey Carr & Co for breach of duty alleged to be owed to the deceased, a second against them for breach of duty alleged to be owed to the Defendants as beneficiaries of the estate in its administration, and a third against them for alleged negligence in their behaviour including the commencement of the proceedings for the removal of the First Defendant as executor. The fourth paragraph gives or refers to some particulars of the breaches of duty alleged. The fifth paragraph addresses preliminary questions of quantification of loss, and the final paragraph deals with issues concerning the pre-action protocol for professional negligence.

It is not possible to incorporate the whole document into this judgment. I will however give some extracts by way of example. The following is from this first part of the document, comprising the fourth paragraph referred to above:

"The Claimant and his legal representatives repeatedly endeavoured to deter/limit the Court's examination of the extensive chronological documentation filed in 2014/15 by the First defendant as witness Statements and Exhibits DCL Annex 01-DCL Annex 08 and DCL1-DCL9, even though this chronologically documented and highlighted substantive issues comprising over five years of negligence by the Claimant and his firm, the documentation amounting to only about one page per day over the entire period. It has been difficult for the Defendants to summarise all of that material in five pages, so this Statement of Case refers to that documentation with this summary supported by DCL Exhibit CC1 [this is the third part of the document] which elaborates on each section in the Statement of Case per se. There are so many instances of waste and false statements on the part of the Claimant and his firm that only a sample can be included here, and by necessity that must omit some detail. To enumerate all substantive points without the supporting evidence risks being counterproductive and merely prompting denial."

The second part of the document (8.5 pages), headed "Statement of Case" breaks down the claims very broadly into (i) alleged failure to administer the estate properly (including issues related to the deceased's house and collect a debt alleged to be due), and in any event within the "executor's year", and (ii) issues related to financial and legal advice given to the deceased during his lifetime. However, although there are cross-headings provided, many specific allegations are made, and in some cases detailed particulars are given, these claims are not addressed in a systematic way. The claims are not grouped together either by time (so that the claims in respect of alleged breaches of duty during the deceased's lifetime and those arising in the course of administration are mixed together) or by defendant (so that the claims against Stuckey Carr & Co appear at various different points).

By way of example of this part of the document, I set out two paragraphs. The first is from a section dealing with "Probate delays":

"A further complaint in November 2011 resulted in a promise that the First Defendant's concerns could be addressed 'in parallel' to the completion of the IHT forms and application for Probate. This was after the Senior Partner had written to the other Beneficiaries in October 2011 trying to persuade them to encourage the First Defendant to stand aside as executor, blaming him for delays. Hostile further letters, and threats up to December 2011, followed by the First Defendant pointing out, and correcting, numerous errors on the HMRC IHT forms in January 2012, foremost of which was his concern about the unknown whereabouts of the Deeds and Documents of Title to the property, resulted in the Senior Partner stating that they did have the Deeds, that he had taken them into his custody, but non-compliance with requests for a copy so that the First Defendant could examine them so that he could independently establish that they did indeed have the originals and whether there were any financial encumbrances."

The second extracted paragraph is from a section headed "Claim to have DCL removed as executor, claim for loss of income":

"The Claim to remove the First Defendant was brought without the support of the Beneficiaries, and thus contrary to the principle that one Executor cannot sue another Executor (given that they are legally one and the same and an individual cannot sue themselves). It was explicitly contrary to the wishes and interests of the Beneficiaries, as evidenced by their Acknowledgements of Service in 2014. Both supported the First Defendant. Proceedings initiated by the Claimant and his Partner were not only technically improper on the above point, but were also non-compliant with CPR PD 57.13(2) which requires a Claimant to state both the assets and liabilities of the estate (which would have included any financial encumbrances) as well as the address where the estate documents are held (such as the location of the Deeds). Neither were provided. In summary, the Claimant and his Partner's action was at the expense of the Estate and its Beneficiaries, were in breach of the CPR Rule/Practice Direction 57.13 and served only to further increase the costs of Estate administration and distribution."

The third part of the document (12.5 pages), headed "DCL Exhibit CC1, Elaborative context for counterclaim", gives further details in respect of some of the claims, but is repetitive both of the earlier documents and also internally. Although there are some cross-headings, and numbering of sections, paragraphs are simply bullet-pointed, and become very long (the longest is nearly two pages). Again, the claims dealt with are not addressed in any systematic way. In no part of the document, however, is any coherent case on causation of loss advanced. Indeed, whilst a number of "complaints" can be seen, causation and loss are covered thinly, if at all.

By way of example of this part, I set out a paragraph from the section headed "Devastavit/Waste of Estate Assets and causing significant delays causing extra estate costs":

"Further evidence of negligence on the non-disclosure of the Deeds is evidenced by the fact that even though the First defendant had been given exclusive Power of Attorney to dispose of the property from 2002, and later had the right to the Deeds through devolution of Title upon the death, the First Defendant was denied access, as well as notice as to their whereabouts, both before and after the death. Had it been possible to establish their location and provenance this would have permitted expeditious and equitable distribution of the estate shortly after Probate in May 2012 and had they been disclosed before Probate, the application for Probate itself would have been expedited, and the property rented out for an income. The Claimant form's non-cooperation with the First Defendant, even though the First defendant was supported by the beneficiaries throughout (including throughout an early effort in 2011 by the Claimant and his firm to remove the First defendant as an Executor in late 2011), served only to incur costs and losses. For instance, loss of rental income from the First defendant's property 16 Mariners Mews, London E14 3EQ alone amounts to between £50,000-£60,000 per annum based on current rental estimates of between £4,250-£5,000 per month (estimated online, September 2015), a loss since Probate was granted in May 2012 of up to £200,000. Delays and obstructions by the Claimant and his firm, plus full knowledge of the defendant's independent research commitments (bringing Medical Model Actuarial Evidence-Driven Practice to bear on Government policy in Criminal Justice and Education), and his Partner's London residential employment commitments as a Deputy Head Teacher in an inner city Secondary school at a time when such schools are under intense performance scrutiny, was abused to pressure the First Defendant and his partner not to exercise his fiduciary duty and other obligations to the Estate and its Beneficiaries, i.e. to deter Due Diligence and/or pursuit of a negligence claim against the Claimant and his firm. This was effected through concealment and increasing costs and delays to Estate distribution which financially adversely impacted upon the Beneficiaries and Major Creditor alike."

Quite apart from the substance of what is put forward, a number of common features of the pleading style can be seen in these extracted paragraphs. Instead of short sentences, each making a single point, there are very long sentences, making several points all at once. There are generalised allegations (some of the utmost gravity) without particulars. There is a general pleading of "evidence" to support the generalised allegations. There is much material that is simply irrelevant. And there is a general lack of coherence. In the last extracted paragraph, there is no explanation of how a failure in respect of the title deeds to the deceased's property could cause a loss of rental income in respect of the First Defendant's own pre-existing property elsewhere.

The Claimant's application

The Claimant's Application Notice of 9 November was a response to this revised statement of case. Lisa Taylor, in her witness statement of 10 November 2015, complains that the new counterclaim does not comply with the relevant rules and nor with my order. I have set out the rules and the relevant part of my order above. Lisa Taylor says:

"9. [ … ] The 'Counterclaim' is [a] dense document; it is lengthy and prolix; it is not set out in separate consecutively numbered paragraphs which contain no more than one allegation; it does not deal with the case on a point by point basis and adopts what I would suggest are contentious headings. It is simply not in a form to enable a point by point response to be pleaded.

10. Further 'the Counterclaim' is incoherent and insufficiently particularised .

10.1 It appears to advance claims by the First Defendant in his capacity as executor in respect of causes of action which are alleged to have accrued to the Deceased against the firm Stuckey Carr & Co;

10.2 It also appears to advance claims by the First Defendant in his capacity as beneficiary in respect of causes of action alleged to lie against the Claimant personally as former executor;

10.3 It also appears to advance claims by the First Defendant in his capacity as executor in respect of causes of action which are alleged to lie against Stuckey Carr & Co as solicitors retained by the Claimant and the First Defendant as executors.

The distinction between these various claims is not articulated clearly and is very difficult to follow. The identity of the proposed defendants is unclear.

The application is made under CPR rule 3.4. So far as material, this provides as follows:

"(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

(2) The court may strike out a statement of case if it appears to the court –

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

(c) that there has been a failure to comply with a rule, practice direction or court order."

I remind myself that in exercising this (and any other) power the Court must seek to give effect to the overriding objective: CPR rule 1.2(1). The overriding objective is set out in CPR rule 1.1, which reads:

"(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate –

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly;

(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases; and

(f) enforcing compliance with rules, practice directions and orders."

In considering this matter, I have had the benefit, not only of the oral submissions made to me at the hearings on 20 and 21 January 2016, but also of the evidence filed by both sides in this application, the written submissions in the Claimant's skeleton argument before that hearing and the further written submissions after it, dated 28 January (from the First Defendant) and 4 February 2016 (from the Claimant). I have taken all of these into account.

The Claimant's arguments

Mr Bowmer, in his skeleton argument, says that in summary there are three "critical problems" with the counterclaim. First, it is too dense and prolix to enable a point by point defence to be pleaded, as the CPR require. Second, it has mixed together claims in different capacities and against different parties, including (i) claims by First Defendant as executor against the Claimant's former law firm, Stuckey Carr & Co (which is not a party) which are said to have accrued to the deceased whilst alive; (ii) claims by First Defendant as beneficiary against Claimant personally as former executor; and (c) claims by First Defendant as executor against the Claimant's law firm in respect of their retainer by the Claimant and First Defendant as executors of the will of the deceased. Third, there are no proper particulars of the claims, and no coherent case on causation.

In my judgment there is force in each of these three criticisms. The first is obviously a matter of impression. However, having read the second version of the counterclaim, I have to say that , although there are some points that would be clear enough to respond to, there are many more for which it would be impossible. Overall this could properly be described as a nightmare pleading to deal with. The rules of procedure must equally protect the person responding to a claim as much as they enable the claimant to put forward his or her claim.

Second, it is quite clear that claims of different kinds have been mixed together, contributing to the degree of difficulty of properly responding. Although in his witness statement of 22 February 2016, paragraph 5, the First Defendant says his case "has consistently been the simple one that the Claimant … caused delays to estate administration, and that these delays produced losses to the estate…" the counterclaim is beyond any doubt not so confined, even if it is very difficult to see exactly how far it does go. Third, I agree that the provision of particulars is hit and miss. Some topics are clearer than others. But there is certainly no coherent case on causation, for example.

I also accept that, as Mr Bowmer also says, the statement of case even in its revised form is still formally defective as well. It does not properly comply with CPR Part 16 or the Chancery Guide. By way of example only, it is not a concise statement of the facts on which the claimant relies, it does not number the paragraphs consecutively, each paragraph does not contain only one allegation, and it does not throughout deal with the case on a point by point basis. All of these things are necessary in order to facilitate a point by point pleading of his defence to the counterclaim by the Claimant. Only in this way will the parties and the Court be able to see what is truly in issue between the parties. This matters because efficient case management and trial depend on accurately identifying that. Accordingly, to that extent at least the counterclaim does not comply with the order of 30 July 2015.

In his post-hearing written submissions, Mr Bowmer repeats some of this. He argues that, in addition, the counterclaim does not "properly set out all the necessary elements of a claim in terms of duty, breach, causation and loss," and as a result there are "no reasonable grounds for bringing the claim and CPR 3.4(2)(a) is applicable". I have already said that there is some force in these criticisms (above, paras 33-35). But I doubt that rule 3.4(2)(a) is appropriate for dealing with cases where the real vice is that the statement of case is impossible to plead to rather than that it does not contain the elements of a claim. In any event, as will be seen, I need not dwell on that sub-rule.

The special position of counterclaims

There are other problems, too. Counterclaims are governed by the procedural rules in the CPR Part 20, and also by the Senior Courts Act 1981, s 49(2)(a). I will come back to the CPR. But the court's jurisdiction to deal with counterclaims at all is conferred by the 1981 Act. Section 49(2)(a) (so far as material) provides

"Every court shall give the same effect as hitherto – (a) to all … counterclaims…"

The significance of the words "the same effect as hitherto" is to refer back to the equivalent provision in the Supreme Court of Judicature (Consolidation) Act 1925, s 39(1)(b) (and before that the equivalent provision in the Judicature Act 1873, s 24(3)). The 1925 Act, by s 39(1)(b), (so far as material) provided that

"The court … shall have power to grant to any defendant … (b) all such relief relating to or connected with the original subject of the cause or matter, claimed in like manner against any other person … as might properly have been granted against the person if he had been made a defendant to a cause instituted by the same defendant for the like purpose".

The 1873 Act, s 24(3) was to similar effect.

So s 49(2)(a) of the 1981 Act gives the court jurisdiction to grant relief to a counterclaiming defendant against a person other than the original claimant only to the extent that it did "hitherto", that is, under the earlier legislation. But that legislation made clear that, in the case of a counterclaim against a third party, the relief sought had to be "relating to or connected with the original subject of" the claim. If it was not, the counterclaim would be struck out as against the third party: see eg SF Edge Ltd v Weigel (1907) 97 LT 447, CA.

CPR rule 20.9(2) supports this conclusion in relation to the current law too. That rule provides that when the court is considering whether to permit an "additional claim" (defined by rule 20.2(1)(a) to include a counterclaim) to be made, the court may have regard to

"(a) the connection between the additional claim and the claim made by the claimant against the defendant;

(b) whether the additional claimant is seeking substantially the same remedy which some other party is claiming from him; and

(c) whether the additional claimant wants the court to decide any question connected with the subject matter of the proceedings –

(i) not only between existing parties but also between existing parties and a person not already a party; or

(ii) against an existing party not only in a capacity in which he is already a party but also in some further capacity."

The drafting of rule 20.9(2)(c), in restricting the question to be raised in the counterclaim to one "connected with the subject matter of the proceedings" when the court is considering a counterclaim against a third party, shows that, where the question is not connected with the subject matter of the proceedings, the court does not need to take it into account, because in such a case the court cannot allow the counterclaim to be made anyway.

In the present case the counterclaim made by the First Defendant raises claims against both the Claimant and the partners of his former law firm, Stuckey Carr & Co. Certainly, to the extent that the counterclaim against the law firm relates to matters before the death of the deceased, ie in relation to failing to give appropriate advice to him about his investments or the title to his house, in my judgment it does not relate to nor is connected with the claim by the Claimant to remove the First Defendant as an executor of the deceased's estate.

Even in relation to the allegations of maladministration of the estate there must be a question as to whether they sufficiently relate to or are connected with that claim: cf SF Edge Ltd v Weigel, cited above, where a counterclaim for libel alleged against the claimant and a third party was held not sufficiently connected to the original claim, also for libel, both libels arising out of a long-running dispute between the claimant and the defendant, who were rival motor-car dealers.

However, I do not need to resolve that question at this stage, because, as Mr Bowmer points out, no permission has been sought or obtained by the First Defendant to bring claims as part of his counterclaim against the Claimant's former law firm. CPR rule 20.5 provides that a defendant who wishes to counterclaim against a person other than the claimant must first obtain permission. As I have already said, Deputy Master Bartlett by order on 8 April 2014 gave permission to First Defendant to file and serve a counterclaim, but that was because the original claim was brought under Part 8, and the court's permission is always needed to make a counterclaim, even against the claimant alone, in those circumstances: CPR rule 8.7. Permission under rule 8.7 is not permission under rule 20.5. Those two rules serve quite different purposes.

So far as the First Defendant's counterclaim is against the Claimant, it might be thought to be on safer ground. But there is an issue here as well. The Claimant made his claim against the First Defendant in his capacity as executor of the will of the deceased. Not being a beneficiary of the estate, he would not otherwise have had standing to bring the claim at all. Yet some of the claims made in the counterclaim against the Claimant are claims against the Claimant in his capacity as a solicitor who advised the deceased during his lifetime. Mr Bowmer accordingly also argues that First Defendant needs permission to make a counterclaim against the Claimant in a different capacity from that in which the Claimant sues the First Defendant.

I was not referred to any decisions or commentary on the point, and I am not aware of any. It is of course well established that a person who has more than one capacity, such as trustee and beneficiary, should be joined as a party to litigation once only, and on a single side: see Neale v Turton (1827) 4 Bing 149; Hardie & Lane Ltd v Chiltern [1928] 1 KB 663; Re Phillips [1931] WN 271. But that rule tells us nothing about the construction of the phrase "person other than the claimant" in CPR rule 20.5. If the claimant has two capacities, one personal and one representative, it may be regarded as accidental that he or she has the representative capacity. Someone else might easily have taken out the grant.

However, rule 20.9(2)(c) is relevant here also. It similarly restricts the question to be raised in the counterclaim to one "connected with the subject matter of the proceedings" when the court is considering a counterclaim against an existing party but in a different capacity. In my judgment this sub-rule is not explicable except on the basis that a counterclaim against an existing party in a different capacity is to be treated similarly to the case of a counterclaim against a quite separate third party. Accordingly the First Defendant needs permission to make a counterclaim against the Claimant in respect of the claims alleged against him arising out of conduct before the death of the deceased.

The Defendants' position

As already mentioned, the First Defendant has made a number of submissions which are relevant to this application. In para 4 of his 15-page witness statement of 7 December 2015 (which referred to "the Defendants' Counterclaim summary"), he expressly asked the Court to award what he called "summary judgement" against the Claimant on the grounds that the latter had not put in a defence to the counterclaim. But the Claimant has made an application by notice to strike out the counterclaim on the footing that (inter alia) it is not possible to plead to it. Obviously, until that issue is resolved I cannot give judgment in default of defence to counterclaim. As for "summary judgment", that is only appropriate in a case where a party has put in a defence, and the court considers that, notwithstanding what is argued, there is no need for a trial. The remainder of the statement is stated to be an attempt "to further explicate the core of the Counterclaim", and repeats much of the counterclaim in different language. What it does not do is to answer the criticisms of the new counterclaim as filed.

In his letter to the Court of 15 January 2016 (clearly written on behalf of "the Defendants") the First Defendant dealt with a few points about the bundle for the hearing of the Claimant's application, repeated some of the points already made in the statement of 7 December 2015, and finally asked the Court to

"Order the Claimant and his representatives to cease wasting the Court's and Defendant's time and resources given that his and his agents breach of duty is clear and rationally indisputable, and their assertion that they find the evidence and argument hard to follow or understand is not a legitimate defence, and on the contrary, amounts to further evidence of their professional negligence".

It is not possible for the Court to make orders of this kind. If the Court took the view suggested by the First Defendant, it could of course dismiss the Claimant's application. If the Claimant then did not file a defence, the Defendants could apply for a default judgment. If the Claimant filed a defence, the Defendants could apply for summary judgment if a trial was unnecessary.

At the hearing itself, the First Defendant covered a number of matters in oral submissions. These included the problems he had encountered in relation to the filing of bundles, the coherence (as he saw it) of the counterclaim as redrafted, the order of Deputy Master Mark of February 2015 (which he considered was in the Defendants' favour, rather than deciding matters against them), his surprise at the Claimant's lawyers' inability to understand the counterclaim, the two main issues of the Hong Kong bank claim and the title deeds to the deceased's house, problems encountered in obtaining a sealed copy of the order of July 2015 for the purposes of extracting an amended grant to the Estate, and his understanding that, if the Claimant were removed from office he would be exonerated of all liability. He also accepted that he had not put the professional negligence claim very well in the original counterclaim, but thought it was very clear in the revised version, and that he had looked at the Chancery Guide for that purpose. He also accepted that he had not enumerated the losses alleged to have been caused, because they were "multiple".

In his written submission dated 28 January 2016 (described as "DEFENDANTS' 28^TH JANUARY 2016 SUBMISSION…", and clearly written on behalf of the Defendants), the First Defendant complains that the Claimant has referred to and relied on aspects of the costs judgment last November, though that related only to the claim and not at all to the counterclaim. I agree that the costs judgment was one in relation only to the claim. I also agree that the Claimant has referred to it in the context of the present application (see eg the second witness statement of Lisa Taylor dated 14 January 2016, para 13, as well as the oral submissions of counsel for the Claimant at the hearing). But, to the extent that any element of the counterclaim was an element also of the claim, it is quite possible for decisions relating to the claim to be relevant also to the counterclaim. For example, in deciding the costs question, I had to decide whether the Claimant behaved unreasonably in bringing the claim to remove the First Defendant as executor. I decided that he had not, for the reasons given. If any element of the counterclaim rests on an assertion that the Claimant behaved unreasonably in bringing the claim, then that element is already decided as between the parties, and there is nothing wrong in the Claimant pointing it out.

In that written submission, the First Defendant also makes a number of other points. These include the following:

a. The Claimant's counsel spent a great deal more time in argument at the hearing than did the First Defendant;

b. The new counterclaim was a genuine attempt to summarise three years of delay to estate administration, and it is difficult to summarise such chronic negligence transparently in just a few pages;

c. The Claimant's legal team changed just after the new counterclaim was filed and some of the complaints of incoherence may be put down to their lack of familiarity with the case; the change in team should not prejudice the Defendants;

d. The First Defendant in drafting the counterclaim himself was seeking to avoid unnecessary expense to the estate;

e. The new counterclaim cannot be safely struck out without the risk of a miscarriage of justice;

f. The counterclaim is in part also against Stuckey Carr & Co both "to avoid the indeterminacies of reference and liability" and because Deputy Master Mark suggested on 3 February 2015 that some of the counterclaim may be against the Claimant's firm";

g. The First Defendant did not adopt a "scattergun approach" in his pleading; it is simply that there were a lot of instances of negligence that needed to be referred to, as the estate assets all "had a relevant history" going back to when the will was drafted in 1994.

I have considered everything that the First Defendant has said, and in particular all these points. Some of them have or may have a factual foundation (a, b and d, and part of c). There is wishful thinking in others (the rest of c, f and g). Other aspects (e, and generally) are for the Court to assess looking at the situation as a whole. I have no doubt that the First Defendant has done his best to write down the substance of the defendants' complaints against the Claimant and his firm. But that is not enough. And I agree that it is a difficult (ie skilled) undertaking to make clear to the recipient of your pleading exactly what you reproach him for, when the events concerned occurred over a number of years, and also to give details of exactly how those events caused you loss, and quantifying that loss. But it has to be done if there is to be a fair trial. I have to judge the result by reference to the rules which apply to statements of case, and then stand back and assess whether the claim should be allowed to go forward in this form.

In his nine-page witness statement dated 22 February 2016, the First Defendant opposed the Claimant's application for the grant of relief from sanctions because of a failure to serve written submissions on the First Defendant in time. The breach was trivial, being late by 3 minutes in serving two out of three defendants with submissions in reply to those of the First Defendant, and overnight in relation to serving the third, caused by a minor administrative mistake, and causing the defendants no inconvenience, let alone injustice, whatever. Though accepting that the breach was both "minor in itself and reasonably promptly rectified", the First Defendant wrote 21 paragraphs of submissions, urging the court to deny relief from sanctions because

"its consequences are not trivial to the extent that it comprises yet a further addition to a cumulative pattern which is having major financial consequences in terms of issues to the estate…"

So far as I can see, the financial consequences of this late service (which in my view was not actually a breach of any order) to the defendants are zero.

That witness statement also reiterated some of the points made in earlier documents about the nature of the counterclaim, again using over-sophisticated language (see eg para 8: "In our 29 September 2015 Summary, we explicated the Cause of Action as multiple instantiations of a breach of Duty of care owed to the Testator's Estate and its assets…"). It also repeated the point that the Claimant had changed his legal team to deal with the counterclaim, which meant there was a learning curve for the new lawyers involved. Indeed, at para 14, the First Defendant argued that the change was an abuse of the process. There may of course be costs consequences of changing representation, but, in the absence of evidence that this was done in order to make life more difficult for the Defendants, it is not an abuse of process. The First Defendant also submitted that the reason the Claimant had not pleaded to the counterclaim was that he had had no defence. Having read the counterclaim in both its old and its new versions, I do not accept this, as I explain below.

The position of litigants in person

Many, perhaps most, of the problems which I have identified stem from the fact that the First Defendant is not a qualified lawyer, and appears to have no experience of this kind of litigation. So far as I am aware, no explanation has been given as to why the First Defendant has chosen to act in person throughout this litigation (cf para 3 of his witness statement of 7 December 2015, where the First Defendant says that the defendants "may well seek legal representation to professionally plead the Counterclaim in court"). I accept of course that (1) he is not obliged to explain himself, and (2) he has every right to act for himself if he wishes. However, it is desirable to stress that there are not in our system two sets of rules, one for those who employ lawyers, and one for those who do not. There is only one set of rules, which applies to everyone, legally represented or not. The courts cannot and do not modify the rules for those who are not represented: see eg Elliott v Stobart Group [2015] EWCA Civ 449, [39].

It may be that, at the margins, and where the courts are properly exercising discretion, the courts will allow a little more leeway to litigants in person than to those who have professional lawyers: cf Tinkler v Elliott [2012] EWCA Civ 1289, [32]. And there are occasionally legal procedural rules where the elements needed for the application of a rule may be impacted by the absence of knowledge or experience of legal processes. But such cases are by their nature rare. The general proposition is that there are no special rules for litigants in person as compared with those litigants who are represented. So I judge the position in this application by reference to the ordinary procedural rules applicable to everyone.

Significantly, what is being considered in this application is not the original counterclaim made by First Defendant. Instead, it is the revised version produced by First Defendant after comments by the Court and specific criticisms by the Claimant. The First Defendant knew what was wrong with the statement of case he had produced. He had a second chance, either to take professional advice, or at least to consider the specific rules to which his attention was expressly drawn by the order of the Court, and to produce a compliant statement of case (which of course he could submit to a professional lawyer for his opinion before actually filing and serving it). I do not know whether the First Defendant in fact took any advantage of these opportunities, but it is right to record that he had them: cf Kim v Park [2011] EWHC 1781, [40], cited by the Claimant.

I do not doubt the First Defendant when he told me at the hearing in January that he thought his revised counterclaim was coherent. He wrote, he said, in the manner of a forensic psychologist, and was surprised that the Claimant's lawyers were unable to understand. But, with respect, the test is not whether he as a former forensic psychologist finds it coherent, but whether the Court does. It is however right to record that the First Defendant said at the hearing that if the counterclaim was not compliant and the Claimant could not extract a cause of action from it, then he was sorry about that.

Conclusions

In accordance with CPR rule 3.4(2), in my judgment there has been a serious failure to comply with the relevant rules and practice directions, and also therefore with the court order of 30 July 2015, as I have already said (see para 29). More importantly, in my judgment this counterclaim as it stands is likely to obstruct the just disposal of the proceedings. The wealth of verbiage and over-elaboration is embarassing. It is largely impossible to plead to, even if some allegations emerge from the mass of detail just about clearly enough to be able to form the object of a defence by the Claimant. I am thinking for example of the allegation of failure to pursue the Hong Kong bank in relation to the face-value of the bank passbook, in section 5 of the counterclaim, at pages 7-9. But most of the counterclaim is not as clear as this. I readily accept the argument of the Claimant that it is not possible to plead to it in practice. I also accept that that is why the Claimant has not so far attempted to plead to it.

I can illustrate the importance of the First Defendant's failures by reference to a not dissimilar case, decided a few years ago. In Towler v Wills [2010] EWHC 1209, [17]-[18], the defendant made an application to strike out the amended particulars of claim under the power in rule 3.4. Teare J described the particulars as "perhaps concise, but they are not clear or coherent."

In relation to the application itself, he said:

"17. In dealing with the first point made on behalf of the Defendant it is necessary to consider whether the Amended Particulars of Claim and the Further Information are unreasonably vague or incoherent. I have come to the conclusion that they are and on that account are an abuse of the process of the Court and obstruct the just disposal of the case.

18. The purpose of a pleading or statement of case is to inform the other party what the case is that is being brought against him. It is necessary that the other party understands the case which is being brought against him so that he may plead to it in response, disclose those of his documents which are relevant to that case and prepare witness statements which support his defence. If the case which is brought against him is vague or incoherent he will not, or may not, be able to do any of those things. Time and costs will, or may, be wasted if the defendant seeks to respond to a vague and incoherent case. It is also necessary for the Court to understand the case which is brought so that it may fairly and expeditiously decide the case and in a manner which saves unnecessary expense. For these reasons it is necessary that a party's pleaded case is a concise and clear statement of the facts on which he relies; see Spencer v Barclays' Bank 30 October 2009 per Mr. Bompas QC at paragraph 35. [ … ]"

The judge accordingly struck the claim out. I note in passing that the fourth to sixth sentences of paragraph 18 (from "Time and costs" to the end) were cited with approval by Sir David Eady in Khosravi v British American Tobacco [2016] EWHC 123, [15], another case of an application under rule 3.4. The judge in that case struck out that claim too.

Once more I remind myself that I must try to give effect to the overriding objective in CPR rule 1.1, of dealing with cases justly and at proportionate cost. CPR rule 1.2 sets out a number of elements included in this idea:

"(a) ensuring that the parties are on an equal footing;