Fetter Lane, London, EC4A 1NL
B e f o r e :
| FLORA ELISABETH KEAYS
(by her litigation friend, SARA KEAYS)
- and -
|THE EXECUTORS OF THE LATE RIGHT HONOURABLE CECIL, BARON PARKINSON
Hearing dates: 9 April 2018
Crown Copyright ©
(1) to terminate the appointment of the claimant's mother, Sara Keays ('Ms Keays"), as her litigation friend;
(2) to appoint Andrea Zavos (of Boodle Hatfield LLP) as litigation friend for the claimant in substitution for Ms Keays;
(3) that the reasonable costs of Ms Zavos be paid out of the estate referred to below;
(4) that Ms Keays pay the defendants' costs of the application.
The claim and procedural background
'Having made separate provision for my daughter Flora Keays, I make no provision for her under this my Will.'
(1) an interim payment to discharge mortgage arrears outstanding as at 31 January 2017 of about £12,000;
(2) a capital sum to buy a house for the claimant, close to where she lives now;
(3) a capital sum to be invested to provide maintenance for her in the sum of £50,000 annually;
and permission to bring the claim out of time.
The claim is supported by a lengthy and detailed witness statement by Ms Keays dated 10 February 2018, which sets out, amongst other things, her and the claimant's income and expenditure; and that neither of them have any savings or capital.
Legal framework of the application
'If nobody has been appointed by the court or, in the case of a protected party, has been appointed as a deputy as set out in paragraph (2), a person may act as a litigation friend if he –
(a) can fairly and competently conduct proceedings on behalf of the child or protected party;
(b) has no interest adverse to that of the child or protected party; and
(c) where the child or protected party is a claimant, undertakes to pay any costs which the child or protected party may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the child or protected party.'
'(1) The court may –
(a) direct that a person may not act as a litigation friend;
(b) terminate a litigation friend's appointment; or
(c) appoint a new litigation friend in substitution for an existing one.
(2) An application for an order under paragraph (1) must be supported by evidence.
(3) The court may not appoint a litigation friend under this rule unless it is satisfied that the person to be appointed satisfies the conditions in rule 21.4(3).'
'(1) As noted above, CPR 21.4(3)(b) stipulates that in order for a person to act as a litigation friend that person must have "no interest adverse to that of the …protected party". The relevant inquiry here is directed towards the conduct and outcome of the litigation for which the individual is to be appointed as litigation friend, and it will in most cases not be relevant to search, outside the bounds of the particular litigation, for some factor that might suggest some potential conflict between the interests of the party and the interests of the litigation friend unless it can reasonably be said that this potential conflict may also affect the manner in which the litigation friend is likely to approach the conduct of the litigation itself.
(2) Moreover, what this prohibition is directed towards is an interest that is "adverse" to that of the protected party. It follows that the fact that the person appointed as litigation friend has his own independent interest or reasons for wishing the litigation to be pursued ought not, in general, to be a sufficient reason for impeaching that appointment. Such an interest would, at least in general, run in the same direction as the protected party rather than being adverse to the protected party's interests.
(3) However, it is necessary in this context to have regard to the decision of the Court of Appeal in Nottingham CC v Bottomley and another  EWCA Civ 756, the only authority on this issue to which I was referred. In dealing with the position of a litigation friend, Stanley Burnton LJ (with whom Rix and Maurice Kay LLJ agreed) emphasised the need for the litigation friend to "seek the best outcome" for the protected party and for a litigation friend to "be able to exercise some independent judgment on the advice she receives from those acting for a claimant, and …be expected to accept all the advice she is given", something that might be difficult where, as in that case, the litigation friend worked for an organisation that would benefit from a settlement in a form that might not necessarily be to the benefit of the protected party itself.
(4). This highlights the fact that, even where the interests of the protected party and litigation friend generally run in parallel or coincide, this does not of itself preclude the possibility that, in some contexts, those interests might diverge and become adverse. Whether or not that is so will, of course, always depend upon the facts of the particular case.'
(1) cannot fairly and competently conduct proceedings on behalf of the claimant; and/or
(2) has an interest adverse to the claimant.
"… AND the Defendants having agreed that the reasonable costs of the replacement litigation friend appointed in accordance with this order
i) of acting as the Claimant's litigation friend; and
ii) of conducting this litigation on behalf of the Claimant,
shall be paid out of the estate of the late Lord Parkinson on a solicitor/own client basis, to be assessed at the Senior Court Costs Office if not agreed
IT IS ORDERED THAT
1. By 4pm on 11 October 2017 Sara Keays ('the Respondent') shall send to the Defendants' solicitors the names of three solicitors willing to act as the Claimant's litigation friend.
2. By 4pm on 25 October 2017 the Defendants shall send any comments on the Respondent's proposed litigation friends to the Respondent.
3. If the parties are agreed as to the identity of a replacement litigation friend, they shall file a draft consent order providing for
i) his/her appointment in substitution for the Respondent; and
ii) the payment of the reasonable costs of the substituted litigation friend for acting as such and of conducting the litigation,
in both cases on a solicitor/own client basis, to be assessed at the Senior Court Costs Office if not agreed."
4. If the parties cannot reach agreement as to the identity of a replacement litigation friend, the Defendants' application shall be re-listed..."
Esther Woolford & Sara O'Grady (Clarke Wilmott)
Michelle Rose (Veale Wasborough Vizards - "VWV")
Paul Gordon (Willans)
(1) Whether the executors have shown grounds for removing Ms Keays as a litigation friend - this is primarily relevant to the costs of the application;
(2) Who should be appointed as the replacement litigation friend.
Grounds for removal
Ability to fairly and competently conduct the proceedings
(1) failing to write any letter of claim setting out the basis upon which she intended to issue a 1975 Act claim upon the claimant's behalf;
(2) failing to use the period up until the expiry of the limitation period for such a claim to exchange information relevant to the claimant's claim with the Executors in order to be able to explore ADR;
(3) failing to use the standstill period to do likewise;
(4) issuing the claim out of time despite being aware of the limitation deadline, and despite having had the benefit of counsel's advice since (at the latest) 20 October 2016;
(5) failing, despite the clear encouragement of Deputy Master Lloyd on 26 June 2017 that she should do so, to provide any explanation over the following few months as to why the claim was issued out of time and offering no reasons in either of her witness statements as to why permission to bring the claim out of time should be granted; only providing such an explanation in her draft witness statement sent to the defendants on 21 January 2018 - nearly 3 months after the deadline by which the Master had ordered her to send it;
(6) failing to reply promptly to the executors' solicitors' numerous requests for evidence relating to the claimant's health conditions and Ms Keays' and the claimant's respective financial positions, when documentary evidence of this would have been readily available to Ms Keays;
(7) failure to respond to an open offer by the executors dated 31 January 2018 until 5 April 2018.
No adverse interest
"45. … I suggest that there is a very real risk that in the circumstances Ms Keays maybe motived by her own conflicting interests to the detriment of securing the most beneficial outcome for the claimant.
46. .. Ms Keays alleged current financial difficulties combined with the history of excessive expenditure, which was often sought to be recovered from Lord Parkinson before his death, along with the unexplained loss of the substantial sums given to her by Lord Parkinson (whether or not for Flora's use) and the considerable sums obtained by way of libel damages, cast doubt on whether she can remain uninterested in the amount and manner in which any award is made is structured, and whether she is in a position to pursue single-mindedly the best interests of Flora at all times."
(1) It was only on two occasions (1988 and 1993) that she sought to recover from the deceased funds for expenditure already made;
(2) 1993 was the last occasion on which she sought to increase the maintenance for the claimant by the deceased;
(3) the only sum given directly to her by the deceased was £47,500 paid to her in January 1984 in respect of her loss of earnings for the first 3 years of the claimant's life;
(4) she gave full disclosure of her income and expenditure in 1993; and it was on that basis that the award of £20,000 per annum was made to the claimant;
(5) the deceased voluntarily continued the maintenance payments when the claimant attained her majority; and they have always been paid to Ms Keays.
The executors do not challenge these assertions.
Identity of the litigation friend
(1) that she had taken an obstructive and unreasonable approach to settlement discussions in that claim; and was likely to do so again;
(2) that her costs were "at a level that was hard to comprehend and ended up seriously eroding the settlement sum her client received"; and were likely to do so in this case.
(1) she has acted as a specialist practitioner and contentious trusts and probate matters for the past 18 years;
(2) she has successfully concluded the settlement of numerous Inheritance Act claims to the satisfaction of her clients;
(3) since commencing practice in 1995 she has not ever been reported to the Legal Ombudsman;
(4) she has acted as a professional court-appointed Deputy and independent administrator/executrix in a number of matters;
(5) as head of VWV's Private Client department, she leads an immediate team of 7 solicitors all of whom specialise in contentious trusts and probate matters; about whom Penelope Reed QC has publicly commented:
"[VWV Private Client] is a superb team, easily rivalling the big London specialist; able to handle the most complex and high value cases and also providing excellent client care. They achieve excellent results for their clients."