B e f o r e :
THE HONOURABLE MRS JUSTICE BARON DBE ____________________
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Bernard Weatherill QC (instructed by Messrs Blake Lapthorn Linnell) for the Claimant Mark Blackett-Ord (instructed by Messrs Bosley & Co) for the Respondent Hearing dates: 18 – 19 March 2004 ____________________
HTML VERSION OF JUDGMENT ____________________
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Mrs Justice Baron DBE :
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.
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.
The Factual matrix.
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
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.
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 :-
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.
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.
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.