Brindle v Palmer [2007] EWCA Civ 1464

Case No B4/2007/1034[2007] EWCA Civ 1464
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MR JUSTICE BENNETT)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 6 th December 2007
Before
LORD JUSTICE THORPE
Between
BRINDLEAppellantPALMERRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
THE APPELLANT APPEARED IN PERSON. for in person for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgment
[1]Miss Brindle applies for permission to appeal an order made by Bennett J on 9 March 2007. He dismissed her appeal from the order of District Registrar Clarke-Brown given on 2 October 2006. It was by that name that the judge described the district judge. However, the order of 2 October is signed Karen Clarke-Rimmer so I surmise that the judge’s description is simply a typographical error and that in fact the case concerns at root an order of District Registrar Clarke-Rimmer. The order of 2 October that Bennett J considered seems an order hard to challenge, for there had been a hearing in front of the district registrar on 22 August as a consequence of Miss Brindle having issued a summons on 24 July 2006 for an order that the sealing of a grant of probate be denied to the two professional executors of her mother’s will. Before the district registrar on 22 August Miss Brindle appeared in person. The district registrar, no doubt being anxious to assist a litigant in person, explained her opinion that the jurisdiction for the removal of executors is vested in a judge of the High Court and she directed Miss Brindle to issue a claim under section 50 of the Administration of Justice Act 1985 by 30 September.[2]If no such claim were issued within time then probate was to be granted to the executors and Miss Brindle’s caveat was to be of no effect. On 2 October the parties reassembled against the background that Miss Brindle had failed to issue any claim under section 50 within the time specified. Accordingly a grant of probate seemed inevitable. Furthermore Miss Brindle apparently told the district judge that she had not done so because family members had dissuaded her from pursuing her challenge. So the only discretionary order made by the judge on that occasion was to order Miss Brindle to pay the executors’ costs which she assessed in the sum of £709.33 inclusive of Value Added Tax. Miss Brindle’s reaction was to appeal the order of the district registrar. That appeal was first listed before the president on 16 January. On that occasion the court received a telephone call from Miss Brindle saying that she was indisposed. Accordingly the president decided to adjourn to a date to be fixed and he directed Miss Brindle to file a statement of her grounds of appeal within 28 days.[3]The grounds filed on 9 February were singularly unhelpful. They stated only:
“Failure to execute a judgment in this case in accordance with the law by her woeful disregard of relevant points of law and lack of impartiality.”
In defence of that Miss Brindle this morning has emphasised that she is only a litigant in person and really did not know what to say.[4]The hearing adjourned by the president came on before Bennett J on 9 March. He noted Miss Brindle’s absence. Counsel for the executors did show the judge an e-mail that had been received by her instructing solicitors the previous day to the effect that she had advised the Principal Registry that she was unable to attend and had provided the necessary documentary evidence. Bennett J continued:
“I know nothing of any communication that Miss Brindle has made to the Principal Registry and thus if any communication was made I do not have the necessary documentary evidence. This is the second time that Miss Brindle has failed to appear and there is, on the face of the documents, no explanation why she has not. Furthermore, in my judgment, her appeal is hopeless. She was given the opportunity to make the application if she wanted to and she, having been given that opportunity by the district judge, failed to do so.”
[5]Miss Brindle issued an appellant’s notice against that order somewhat out of time on 21 May; so once again there seemed to be procedural difficulties facing Miss Brindle. That application was referred to me on paper and I refused, pointing out that she was seeking a second appeal which would be caught by section 55 of the Access to Justice Act 1999 and no important point of principle or other compelling reason had been demonstrated. Miss Brindle exercised her right to an oral hearing this morning and she has relied upon an e-mail communication that she made to the Principal Registry at 13:49 on 8 March 2007, in which she explained that she would be unable to attend the following day due to injuries received in a road traffic accident. The e-mail says on 8 but she meant to say 7 March and she sought an adjournment. She provided corroboration in the shape of a letter from the hospital where she had been treated. The e-mail says that she also attached a copy of the medication dispensed but that I have not seen this morning. Suffice it to say that the brief note from the doctor in A&E confirms that Miss Brindle attended with a neck sprain following a road traffic accident. He prescribed medication and advised on seven days’ rest. That was issued at 0300 hours on 8 March.[6]So I have to accept that there is a flaw in the judgment of Bennett J for which he is in no way responsible. The flaw lies in the failure of administration in this building to communicate to him the all important e-mail and medical certificate. I lay the responsibility on the staff in this building because Miss Brindle received, at 13:49 on 8 March, an acknowledgment from the Probate Department. The writer, Miss Patel, said:
“Dear Miss Brindle, Your e-mail will be forwarded to the Royal Courts of Justice as the file has already been sent to them.”
[7]This morning I have tried to explain to Miss Brindle that although she has an entitlement to a rehearing of her first appeal given the flaw that she has demonstrated, it does seem to me that that is an empty gain since I cannot see any basis upon which she will succeed at a rehearing of the first appeal. What the district judge did on 2 October was seemingly inevitable in the face of Miss Brindle’s failure to issue under section 50 by 30 September and in the face of the explanation that she gave for that failure. I have also warned her that if there is a further first hearing of her appeal on notice to the executors then there is every likelihood that she will have to pay the costs.[8]However, all that said, what I propose to do is to make an order today adjourning her application for permission to a further oral hearing on notice to the executors. The judgment that I am giving, once approved, is to be sent to the executors and I invite them to consider agreeing an order, setting aside the order of 9 March and directing that the first appeal from the order of the district judge be set down for hearing before some other judge of the Family Division. This is not on any basis material for the Court of Appeal. If there has been a procedural flaw in the Family Division justifying the setting aside of the Family Division order the obviously proper course is for that first appeal to be re-listed. There is nothing to demonstrate the need for a second appeal to this court.[9]So I hope that rather than seeing Miss Brindle again in this court with the executors at the other end of the row, the executors will simply consent to what I would describe as an order nisi granting permission to Miss Brindle, allowing her appeal, setting aside the order of 9 March and directing a rehearing of her first appeal from the order of 2 October before some other judge of the division.

Order

Application granted.