England and Wales High Court (Family Division) Decisions

RESTRICTION
This judgment is being handed down in private on 19 March 2004. It consists of ....... pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported. The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 March 2004

Mrs Justice Baron DBE :

1. This case has come before me because a summons was issued on the 5^th August 2003 in the District Probate Registry at Brighton seeking an order that Mr N S (hereinafter referred to as the "Respondent") - who is the executor of the Will of his father the Late C S - do provide a full inventory and account, verified by affidavit of his dealings with the Estate probate of which was granted, as long ago as the 16^th August 1984.
2. The summons was brought under Section 25 of the Administration of Estates Act 1925 and under Rule 61 of the Non Contentious Probate Rules 1987 – as such, this business is still designated to the Family Division as part of vestigial powers from the days when it dealt with Probate, Family and Admiralty matters.
3. The Factual matrix.

(a) The Late Mr S had two children – the Respondent (referred to above) and C I (The Claimant) and died on the 27^th September 1983. By his will, he left his house and contents to his widow and left the remainder of his Estate in 8 parts to be divided. Some 4 parts were subject to his widow's life interest and some 4 parts were not. The Claimant had a one eighth interest in remainder and one quarter of the residue absolutely.

At the date of the grant of probate in August 1984, the estate's value was sworn at £88,750 – but the house and chattels were valued at £102,500 – thus, on the face of it there was no residuary estate.

(b) For the next 15 years or so, no steps were taken by the Claimant to seek to have an account of the Estate – as it appears that the relationship between brother and sister was fairly cordial. The papers reveal that in 1999 a business in which they were interested was sold and, as a result, the Claimant felt that she had been cheated. This lead to a general lack of trust between the siblings and, as she had received nothing under her father's will, the Claimant began to wonder whether her brother had accounted for all the assets.

(c) In the light of this, in 1999, she began to ask for an account of the Estate. She was met with a good deal of prevarication and little action. On the 28^th January 1999, she wrote directly to her brother's solicitor - Mr Hastilow at Bosley & Co (who continue to act for him in this action) "As I am a beneficiary under my father's will and it is now more than 15 years since his death. I imagine the estate must now be wound up. Can you please let me have a copy of Probate and the Estate accounts."

She did not threaten a legal action, she only sought information. The response from Mr Hastilow was that he had not been involved in the administration of the Estate but he would pass the request on to the Respondent who "I know is going to be in touch with the Accountants who will hopefully be in touch with you direct".

(d) Unfortunately, no accounts were forthcoming and the correspondence meandered on at a leisurely pace over the next 4 years. In 2003 the Claimant's patience came to an end and on the 4^th March 2003 a letter was written from her solicitors which stated "Unless we have the form of authority [that was to the Capital taxes office] … and you instruct John and Co [the accountants] our client instructs us that we should make an application to the court to compel delivery of the Accounts forthwith without further reference to you. In that event we shall be asking the Court to order that you shall bear the costs of the application".

(e) Even this letter did not produce the accounts. Thus, the summons was issued and the 4^th August 2003, the Claimant swore her affidavit in support in which she made it clear that she had some serious doubts about the values that had been ascribed to the various assets of her late father's estate. She also expressed doubts about the contents of the Inland Revenue Affidavit.

(f) Her affidavit in support of the summons set out the need for information so as to confirm or assuage these concerns. On the 15^th August some accounts were produced by Messrs John and Co. They showed that there was a deficiency in the Estate of some £19,600. This account did not satisfy The Claimant.

The Hearing of her summons was fixed for 18^th September 2003 and attempts were made to serve the Respondent at his home address. He shared those premises with his partner a Ms C C. Process servers attended the premises on the 18^th and 19^th August but to no avail. It is the Claimant's case that he was seeking to avoid service. In the event, a letter enclosing the summons was hand delivered to the address on the 26^th August. The Respondent was not on the premises and Ms C wrote to Messrs Bosley & Co stating, inter alia, "that he is away for a few weeks" and " they gave me no opportunity to say he was not here"…..

This letter was passed on to the Claimant's solicitors. Moreover, Messrs Bosley & Co took the precaution of informing them that (i) they were not acting for the Respondent in the proceedings and (ii) he was away in Turkey. They also wrote directly to the Court on the 17^th September 2003 enclosing a copy of Ms C's letter and informing the Court that the Respondent was "currently in Turkey".

(g) On the 18^th September the Claimant and a representative of her solicitors appeared in front of the Registrar and a note of that Hearing is in the bundle at page 230. It records that the Claimant expressed concern about the Respondent seeking to avoid service. There was no specific mention of his sojourn in Turkey. I assume that the Court had received the letter from Messrs Bosleys & Co but there is no mention of it in the attendance note. Despite the Respondent's absence, the Registrar made an order that "the Respondent do exhibit upon oath a perfect inventory of the Estate and a just and true account thereof and produce all documents relevant to" and there are specific a number of categories of documents relating to specific matters. The Registrar then made a summary assessment of the costs in the sum of £5,140. It is this part of the order which has really caused the problem in this case.

(h) The Respondent remained abroad for some time and was only finally served the order on the 5^th November. It seems that there may have been further difficulties in service. The Respondent then instructed solicitors and they immediately issued an application on the 7^th November by which they sought to have the order overturned on the basis that their client (i) had not known of the Hearing, (ii) had not been present and (iii) therefore was entitled to a rehearing on the principles set out under CPR 23.11.3 or RSC Ord 32 Rule 5. On the 11^th November the Court refused a rehearing and suggested that the proper course was to seek to appeal the order in the Family Division by making an application in conjunction with the Clerk of Rules in London. Despite this, the Respondent's solicitors wrote again on the 18^th November seeking a rehearing and this again was refused by letter on the 19^th November. Nothing then happened for some 4 weeks – whereupon a summons was issued on the 22^nd December, seeking that the order be set aside. There is no reason advanced as to why it took a further 4 weeks for this action to be taken.

(i) The matter was due for hearing on the 20^th February 2004 but it was adjourned (on a one hour time estimate) to 18^th March 2004.

4. The Law.

On behalf of the Respondent it is said that he has not been heard on the matter at all and that this is a breach of Natural Justice and contrary to his rights under Article 6 of the Human Rights Act. He says that the Non Contentious Probate Rules do not permit of a rehearing and that, as he is out of time for an appeal, there appears to be no remedy – unless, that is, I extend the time for appealing.

He submits that the Registrar had no jurisdiction to make the original order because the application was issued in the wrong Court under the wrong procedure. He further submits that the claimant is, in reality, making a claim relating to the administration of the Estate and this must be commenced in the Chancery Division pursuant to Part 64.1 and must be brought by as a Part 8 Claim. He concludes that this application could not fall within the definition of Non Contentious business because that is defined in the Non Contentious Probate Rules as and I quote

"non-contentious … business means the business of obtaining probate and administration where there is no contention as to the right thereto including-

(a) not relevant

(b) all business of a non-contenious nature in matters of testacy or intestacy not being proceedings in any action

(c) not relevant

He asserts the definition makes it clear that this case does not fall within any category set out in that definition. If he is wrong about that matter, then he would seek to appeal and to appeal out of time because he says he must have the right to be heard. He wishes to raise the defence of Laches in relation to the account and, more importantly, he wishes to argue about the quantum of costs.

Despite the former contention, in fact, the Respondent has already sought to comply in very general terms with the main part order of the Registrar. On the 16^th March 2003, he swore an affidavit purporting to deal with the points required in the order – although he informs the Court that he cannot produce better information after some 19 years. However, the real point of this application is the Respondent's dissatisfaction with the level of the costs order. I note, in passing, that the costs of this outing will not have been inconsiderable and will probably be more than the sum in issue.

5. On behalf of the claimant it is asserted that the application was made quite properly. It is the duty of Personal Representatives to identify, get in and administer the estates for which they accept legal and fiduciary responsibility. It is submitted that the passage of time does not affect that duty. I consider it is obvious that the greater the delay, the more reluctant the Court will be to order an inventory and account.

In essence Mr Wetherill submits, his client's application was a request for information under Section 25 of the Administration of Estates Act. Under that provision an executor/personal representative has a duty to

Per section 2, inter alia :-

"(a) collect and get in the real and personal estate of the deceased and administer it according to Law

(b) when required to do so by the Court, exhibit in oath in the Court a full inventory of the Estate and when so required render an account of the administration of the estate to the Court."

He asserts that the Probate Court may (and normally does) make this type of order and it is not necessary to start a Part 8 claim when only information is being sought. Moreover, he notes that the Respondent has tacitly accepted that the account that produced in August 2003 was not full or proper for he does not seek to argue to the contrary in any of his affidavits placed before the Court.

If the information that his client receives pursuant to the order gives rise to questions or issues then the matter will become non contentious and then a part 8 claim will have to be issued.

He makes particular reference to Williams and Mortimer at page 68 to 69 where this proposition is reinforced. He submits that his client was not starting an administration action, she was only seeking information. Her summons was clearly a necessary step in the proper and non contentious administration of any estate. In accordance with the overriding objective in CPR 1.1 to 1.3 parties seeking any relief should initially take the non contentious route before embarking on full blown litigation. Moreover, the order was made after good and proper service.

He points to the fact that the Non Contentious Probate Rules number 65 which provides for appeals to be by summons to a Judge in the Family Division to be issued within 7 days of the decision (with the CPR filling any procedural gaps).

He also points to the delay in issuing these proceedings – even when after the Registrar had informed the Respondent's solicitors about the correct procedure to be adopted. I have already alluded to the fact that this delay has not been explained fully.

6. I am of the clear view that the application in this case was properly issued in the District Registry in Brighton which has jurisdiction to deal with non contentious probate matters. It is clear that a Personal Representative has a duty to produce accounts - if the Court so orders. Of course, a delay in making the request is a matter to be taken into account but that is a matter of discretion. Technically, in this case, I consider that the claimant was only seeking the information to which she was entitled under Statute and she was not seeking to start an administration action. Thus, the Registrar had jurisdiction and the order was properly made.
7. I will therefore consider whether there should be permission to appeal out of time. It seems to me that the Respondent was aware of this order from the 5^th November 2003. He delayed until the 22^nd December when this application was issues – whilst the reason for the 1st part of that delay is obvious, the last 4 weeks are without proper explanation. Nevertheless, he has not had an opportunity to advance his case and I am not clear from the attendance note of the Hearing before the Registrar that his absence was fully explained – as opposed to the case being advanced that he was avoiding service. Thus, on balance, I consider it right to grant permission to appeal out of time in this matter.