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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Lomax & Ors v Greenslade [2018] EWHC 2623 (Ch) (23 July 2018) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2018/2623.html Cite as: [2018] EWHC 2623 (Ch)

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IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN ENGLAND AND WALES
(CHANCERY DIVISION)

		The Rolls Building, 7 Rolls Building, Fetter Lane, London, EC4A 1NL
		23 July 2018

This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.
1. MR JUSTICE CARR: This is a claim under the Inheritance (Provision for Family and Dependents) Act 1975. It is a claim by the children of the deceased, for whom in a will dated 8 March 1997 no provision was made by their father, a Mr Lomax. The defendant and appellant, Ms Nora Isabella Greenslade, is the executor and sole beneficiary of the will. In an extremely thorough judgment dated 3 January 2018, HHJ Bailey concluded that the net value of the estate, which was almost entirely represented by the value of a single property in London, was £699,000. He concluded that from that sum the defendant should receive £69,000 and that otherwise the balance of the estate should be divided three ways between the three claimants.
2. The first ground of the appeal is that the judge should have adjourned the trial because of evidence of the appellant's state of health. The appellant is now aged 67. She has a daughter, Chloe Greenslade. Chloe suffers from chronic obstructive pulmonary disorder and bipolar disorder. Her health issue with COPD has meant that she has been unwell since September 2017. She was admitted to Ealing Hospital on 13 September 2017 for a couple of days. She was then discharged but readmitted on feeling unwell. She stayed in hospital from 6 December 2017 until 19 December 2017. Shortly thereafter she then went to live with her daughter Chloe in Dartford, Kent.
3. The facts that led to the application for an adjournment are as follows. Chloe became concerned about the impending trial date and telephoned the court on 20 December 2017. She was asked to apply for an adjournment formally. Chloe then made the application without medical evidence but stated that she could forward medical evidence if it was needed. The court contacted Chloe by email asking for a fee, which was duly paid. The application was refused on paper by a judge on 28 December 2017 based on lack of medical evidence. Chloe then obtained the evidence immediately in the form of a letter from a community psychiatric nurse dated 29 December 2017; an approved clinician under the Mental Health Act 1983, again dated 29 December 2017; and a letter from the defendant's general practitioner. All the documents referred to the state of health of the defendant, and the first two documents to which I have referred made it clear that, in the view of those medical professionals, the defendant could not and was not fit to attend the trial because of the state of her mental health. These documents were submitted to the court on 29 December. Chloe has given evidence, which I accept, that she made a telephone call and was told that the court did not have the capacity to review the paperwork then but the documents would be put before the trial judge on the first day of the trial, which was Tuesday, 2 January 2018. The defendant did not attend the trial. The judge was told correctly that she was not at Ealing Hospital, and the request for an adjournment was refused.
4. Considering the grounds of refusal of the amendment by the judge, HHJ Bailey expressly referred to amongst other things the letter from Dr Asad Mirza, the defendant's general practitioner. He considered that evidence, including the opinion of Dr Mirza that she would not be fit to attend court and evidence as to her mental health. He decided that in relation to bipolar disorder it was not possible to glean from the letter how serious was the anxiety and panic and that it was by no means clear that this was an appropriate case in which to adjourn the trial, which had been in his diary for many months, the notice of hearing being dated 19 July 2017. It is, I think, evident from his judgment that through an administrative error of the court, he did not see the letter from the clinician under the Mental Health Act, nor, less significantly, the letter from the community psychiatric nurse.
5. The letter from the approved clinician dated 29 December 2017 says as follows:

"This is to confirm that I have reviewed the above-named patient at my clinic today following a relapse of her mental illness. Currently she appears mentally unwell and not functioning, and I have reviewed her medications. My professional opinion is that currently she mentally unwell and she would not be able to attend activities outside the house"


6. In these circumstances it seems to me that I must review the question of whether it is appropriate, given that the judge did not see that evidence, to allow the appeal to the extent of remitting the trial to another judge for a new trial. This question raises the court's jurisdiction under CPR Part 39.3. This provides:

"(3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside.

(4) An application under paragraph (2) or paragraph (3) must be supported by evidence.

(5) Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant –

(a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him;

(b) had a good reason for not attending the trial; and

(c) has a reasonable prospect of success at the trial."

7. This rule allows an applicant who has failed to attend the trial to apply for the judgment or order to be set aside. It gives such an applicant the opportunity, even after judgment has been entered, to explain why the trial should not have gone ahead. However, it is subject to three mandatory conditions: first, the party who failed to attend the trial must make the application under CPR Rule 39.3(3) promptly when he or she found out that the court had exercised its power to enter judgment or make an order against him; secondly, he or she must have had good reason for not attending the trial; and thirdly, he or she must have a reasonable prospect of success at the trial.
8. The scope and application of this rule was considered by the Court of Appeal in Bank of Scotland & Anor v Howard Pain & Ors [2011] EWCA Civ 241. Giving the judgment of the court, Lord Neuberger MR said at paragraphs 24 to 27:

"The applicable principles to these applications

24. First, the application to appeal Judge Ellis's refusal under CPR 39.3 to set aside the Order. An application to set aside judgment given in the applicant's absence is now subject to clear rules. As was made clear by Simon Brown LJ in Regency Rolls Ltd v Carnall [2000] EWCA Civ 379, the court no longer has a broad discretion whether to grant such an application: all three of the conditions listed in CPR 39.3(5) must be satisfied before it can be invoked to enable the court to set aside an order. So, if the application is not made promptly, or if the applicant had no good reason for being absent from the original hearing, or if the applicant would have no substantive case at a retrial, the application to set aside must be refused.

25. On the other hand, if each of those three hurdles is crossed, it seems to me that it would be a very exceptional case where the court did not set aside the order. It is a fundamental principle of any civilised legal system, enshrined in the common law and in article 6 of the Convention, that all parties in a case are entitled to the opportunity to have their case dealt with at a hearing at which they or their representatives are present and are heard. If the case is disposed of in the absence of a party, and the party (i) has not attended for good reasons, (ii) has an arguable case on the merits, and (iii) has applied to set aside promptly, it would require very unusual circumstances indeed before the court would not set aside the order.

26. The strictness of this trio of hurdles is plain, but the rigour of the rule is modified by three factors. First, what constitutes promptness and what constitutes a good reason for not attending is, in each case, very fact-sensitive, and the court should, at least in many cases, not be very rigorous when considering the applicant's conduct; similarly, the court should not pre-judge the applicant's case, particularly where there is an issue of fact, when considering the third hurdle. Secondly, like all other rules, CPR 39.3 is subject to the overriding objective, and must be applied in that light. Thirdly, the fact that an application under CPR 39.3 to set aside an order fails does not prevent the applicant seeking permission to appeal the order. It is not very convenient, but an applicant may be well advised to issue both a CPR 39.3 application and an application for permission to appeal at the same time, or to get agreement from the other party for an extension of time for the application for permission to appeal.

27. An appeal against a judge's decision under CPR 39.3 to refuse (or indeed to allow) an application to set aside a judgment does not, at least normally, involve challenging a discretion. However, an appellate court should be slow to overturn a decision of this nature, unless satisfied that the judge went wrong in principle. The decision will often involve making findings of fact, and, while the findings will normally be based on written evidence only, an appellate court should never lose sight of the principle that the first instance tribunal is the primary finder of fact. In so far as the decision involves a balancing exercise, an appellate court should pay proper respect to the judge's views. Another way of making essentially the same point is that the appellate court normally has a reviewing, as opposed to a rehearing, function in such a case, and it can therefore only interfere if satisfied that the judge was wrong."

9. A summary of his reasoning is as follows. First, the court no longer has a broad discretion whether to grant an application to set aside a judgment given in the applicant's absence. It is now the subject of clear rules. Secondly, all three of the conditions listed in CPR 39.3(5) must be satisfied before it can be invoked to enable the court to set aside an order. Thirdly, if each of those three hurdles is crossed, it would be a very exceptional case where the court did not set aside an order, having regard to the fundamental principle that all parties in a case are entitled to the opportunity to have their case dealt with at a hearing at which they or their representatives are present and are heard. Finally, although the strictness of the three requirements is plain, the rigour of the rule is modified by a number of factors: first, what constitutes promptness and what constitutes a good reason for not attending is very fact-sensitive, and the court should not be too rigorous when considering an applicant's conduct; secondly, the court should not prejudge the applicant's case; and thirdly, the fact that the applicant to set aside an order fails does not prevent the applicant seeking permission to appeal the order.
10. Turning then to paragraphs 45 and 46 of this judgment; Lord Neuberger said:

"Where the new evidence could not reasonably have been available to the defendant even if she had properly prepared for and attended the trial, it seems to me that the defendant's position should normally be no different from a defendant who had attended at trial. So too where her application for a retrial is not dependent upon the fact that she did not attend the trial. In such circumstances, her application to adduce and rely on new evidence or for a retrial would not be related to her position as a defendant who did not attend the trial.

However, it would be very different where the defendant's application to adduce new evidence, or to have a retrial, is essentially based on the fact that she did not attend the trial. If she has already failed in her CPR 39.3 application, it seems to me that to allow her to appeal against the trial judge's order on such a ground would involve letting her in through the back door after having firmly locked the front door. The policy behind CPR 39.3, as interpreted in Regency Rolls [2000] EWCA Civ 379, is to prevent a defendant from seeking a retrial if she did not attend the trial, unless the three requirements in CPR 39.3.5 are satisfied. Where her CPR 39.3 application has been refused because she has failed to satisfy one or more of those requirements, it seems to me that it would be wrong in principle for an appellate court to grant her a retrial on grounds which, in reality, amount to no more than her having been absent from, and therefore not having given evidence at, the trial."

11. The principle set out by the Master of the Rolls was that if the criteria in CPR Rule 39.3 are not satisfied, an applicant should not be allowed through the back door to obtain what he or she could not have obtained through the front door. If no application under CPR 39.3(5) has been made, the appellate court might have to make that decision for itself unless it decides to remit the case to the trial judge. In the present case, no application was made and no application has yet been made under CPR Rule 39.3(5). Bearing in mind the size of the estate, which is relatively modest, I do not think that it would be at all sensible to remit the matter yet again to the county court, which might again lead to a further appeal, and I intend to make the decision as to whether these three criteria are satisfied myself.
12. As to the first criteria, could the application have been made sooner? Has it been made sufficiently promptly, I think it fair to conclude that until the transcript of the judgment was obtained in March 2018, at which time the appellant had the benefit of legal advice, until an application could not sensibly have been made because, although I bear in mind such an application was floated in the appellant's notice, the grounds for making it and precisely what the judge did and did not consider were not clear. However, since March 2018 the application has been open to the appellant to make and it has not yet been made. I do not think that that satisfies the first criteria in CPR Rule 30.3(5). I bear in mind that the applicant says that it was her solicitor's fault that the application was not made sufficiently promptly. If that is so, and I make no observations about whether that is so or not, then the appellant's complaint is against her solicitor at the time rather than against the respondents to this appeal.
13. Secondly, did the appellant have a good reason for not attending the trial? I think it quite possible that she did have a good reason for not attending the trial. I take very seriously the evidence as to her mental illness, and I am prepared to accept (and it may well be that the judge would have accepted as well) that in the light of the letter from Dr Okafor she did have a good reason, but there are three criteria, and she has failed on the first.
14. As to the third criteria (Would she have a reasonable prospect of success at the trial?), I am going to come on and consider the substance of this appeal at this stage, and that will answer that question. But my conclusion on whether this appeal should be allowed to the extent that the judge ought to have allowed an adjournment is that I reject that ground of appeal.
15. I then turn to the substantive appeal against the award made. The appellant presented her own case on this appeal, having recently withdrawn her instructions from her solicitors, and she presented it passionately and very articulately. I have also had the benefit of a skeleton argument which was drafted by counsel at the time, Mr David Stockill, which is also an extremely coherent document. Therefore I feel that I am in a position, in spite of her absence of representation, to consider the substantive merits of the appeal fairly.
16. There are, I believe, four grounds of appeal that it is possible to discern. The first ground is that although the financial circumstances of each of the claimants were not the same, nonetheless the judge when giving his judgment gave an equal award to each of them. That, it is said, could not be a correct exercise of the discretion accorded to the judge under the relevant legislation because each case has to be considered individually. It is said it would be a strange coincidence if, given their financial situation, that individual consideration nonetheless gave rise to precisely the same award. However, in his very thorough judgment the judge asked himself correctly two questions which he would be required to answer. The first question was: did the will make reasonable financial provision for each of the claimants? He said at paragraph 85 that it is necessary to consider each of the claimants in turn, bearing in mind that reasonable financial provision can of course be nil where a particular claimant is well off or sufficiently well off to require no assistance with maintenance. The statements served on behalf of the claimants deal with their present financial position, and each of them has given evidence (brief, certainly, but sufficient) covering their present situation. He then considered the financial position of Zitta at paragraphs 86 to 92, of Cara at paragraphs 93 to 94 and of Russell at paragraphs 95 to 96. He found that each of them had very little money, and he said that disposed of the first question. The will did not make reasonable provision for any of the claimants.
17. He then turned to the second question, which he recognised to be a difficult exercise given the costs of accommodation and living generally in London. At paragraph 99 he recognised that it might be said that Russell would appear to be the worst off financially and enduring the worst living conditions, but on the other hand he did not have dependents and did not have debts, or very little by way of debts. He recognised at paragraph 100 that Zitta is now earning respectably, but she has to share in the upbringing of two teenage children. She lives in rented accommodation and does need a secure roof, if only on a houseboat. He then turned to the position of Cara, who would seem to be able to manage better than her siblings because of the cost of living where she lives in Hungary, but he recognised that Cara has two children, aged eight and six, and their father has mental problems. He then decided that the defendant has or certainly is presumed to have reasonable financial provision without any money under the will, as she had given no disclosure of her means and owned a property which she has lived in for many years. He said that she lets the property above although he recognised that it may be that she only receives ground rent. Overall he decided at paragraph 105, having provisionally split the balance equally between the three claimants, whether that was wrong in principle, and he concluded that it was not. He also considered whether in the case of any particular claimant a third share of the balance would produce more than a reasonable sum for the claimant's maintenance. Again he concluded at paragraph 106 that it would not. Overall I consider that the judge very carefully took into account the financial position of each of the claimants and reached a decision which he was entitled to reach on the evidence before him. It is not the function of an appellate court to interfere with the exercise of discretion by a judge or a value judgment made by the judge unless there is a clear and material error of law or principle or it is a conclusion which can fairly be said to be perverse. I do not consider that the judge's judgment comes anywhere near that degree of error. Indeed, I do not think that there is an error at all. Therefore I reject this ground of appeal.
18. The second area of appeal relates to the judge's calculation at paragraph 104 of the value of the estate. This is material because the sum that he felt it appropriate to allow the defendant, namely £69,000 was a combination of £20,000 (a sum which, in a draft will which was never executed, the deceased left to her) plus the costs of the proceedings, which he felt she should be protected against, plus a reasonable amount for her work as executor. That total would be reduced if in fact the value of the estate is less than £699,000. Today the appellant has handed in two documents, which have been labelled for the purposes of these proceedings A and B, which are said to be estate accounts. This, as the judge noted, should have been done a very long time ago, should quite clearly have been prepared by the defendant as executor well before the trial, and I cannot receive them as fresh evidence on this appeal. However, in addition to those documents I was handed a financial statement from the Partnership Property Solicitors in respect of the sale of 15 Alcester Court, London E5 9PX. I have no reason to believe that that is anything other than a genuine document recording the balance to be sent on completion of the sale to the appellant as executor. That records (once the estate agent's fees have been taken from the property) that there are other additional expenses, the most notable of which was a mortgage redemption payment of approximately £51,500. The totality of those expenses meant that, contrary to what the judge believed, the value of this property as a balance representing the value of the estate was approximately £636,000. I have carefully considered whether I ought to admit this as evidence on this appeal and, given all the circumstances of this case, my concern as to the overriding objective and my concern to try to put into effect the judge's intention, I believe that it is appropriate to do so. I have of course in mind the Ladd v Marshall criteria, including the fact that this document could and should have been produced before, but nonetheless, because of its importance to the case, I consider that it should be admitted. That would reduce the net value of the estate as the judge saw it from £699,000 to £636,000. I believe that, had the judge had this document before him, he would have made the same calculation that he did but still allowed the appellant £69,000 and then divided the residue equally between the three claimants.
19. Having heard all of the grounds of this appeal, I do not consider that there is any basis whatsoever for interfering with the judge's extremely thorough judgment save to the extent that in the light of the fresh evidence that I have admitted to modestly reduce the award that he made to each of the respondents in the manner that I have indicated. That still allows the appellant the protection from costs and other aspects that he considered appropriate and still gives to the respondents the residue of the estate. I should add that if there was in fact any more money in the estate then I consider that that should also go to the respondents. I am not sure that that has fully yet been ascertained.
20. I have also considered whether the judge made any kind of error when considering a draft will that the deceased apparently prepared on his computer shortly before he died. I do not think that he made any error in taking that into account as part of the statutory criteria under section 3 of the relevant legislation. I consider that he was entitled to do so and was right to do so. The appellant before me suggested for the first time that this draft will was forged. I do not accept that. If that allegation was going to be made, it should have been made a long time before this appeal.
21. Therefore I will dismiss the appeal save to the limited extent that I have indicated in this judgment.

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