Levy v Ellis-Carr & Ors [2012] EWHC 63 (Ch)

Case No CH/2011/0313[2012] EWHC 63 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, The Rolls Building, Fetter LaneDate 23/01/2012
EC4A 1NL
Before
MR JUSTICE NORRIS
Between
Mark Levy (The Trustee in Bankruptcy of Errol Weston Ellis-CarrClaimantErrol Weston Ellis-CarrDefendantErrol Weston Ellis-Carr (Personal Representative of the Estate of Violet Ann Ellis (deceased) (otherwise known as Viola Ann Steward otherwise known as Viola Ann Ellis)Defendant
Anthony Allston (instructed by Charles Henry) for AppellantChristopher Boardman (instructed by Rochman Landaw) for RespondentHearing Hearing dates: 19 January 2011
JUDGMENTMr Justice Norris :
[1]In August 1972 a property at 26 Elmar Road, Tottenham N15 (“Elmar Road”) was registered in the joint names of Errol Weston Ellis-Carr (“the Appellant”) and his mother (“Mrs Ellis”). The form of registration was that generally used for legal and beneficial joint owners. In June 1991 a restriction was put on this title such as is normally entered when a joint tenancy is severed. As a matter of law the severance of a joint tenancy would result in a tenancy in common in equal shares.[2]On the 6June 1994 a bankruptcy order was made against the Appellant (who is a former solicitor) in respect of the unpaid costs of an intervention into his practice and a failure to reimburse the Law Society Compensation Fund for payments made in consequence of the Appellant’s theft from his clients.[3]Under sections 291 and 333 of the Insolvency Act 1986 (“IA 1986”) a bankrupt is bound to give all relevant information to the Official Receiver (or trustee); and I am sure that as a former solicitor who one day hoped to be readmitted to the Roll the Appellant would have taken those duties seriously. In the answers to his Bankruptcy Questionnaire the Appellant disclosed that he owned a property and that he owned it with another person. The property was Elmar Road. He drew attention to the existence of two charging orders which arose out of personal debts of his and informed the Official Receiver “… Any mortgage loans outstanding fully paid up in 1982 by myself. The property is currently in the joint names of myself and my mother. Some Charging Orders were made against the property in respect of my share”. This led to the Official Receiver preparing a statement of assets showing a 50% share of Elmar Road included in the bankruptcy estate (but subject to the charges). There a deficiency (because the amount secured by the charges exceeded the value of the Appellant’s half share of the equity).[4]Over time the value of the equity in the property increased. At the end of 2000 the Appellant enquired how he could “proceed to acquire the Official Receiver’s interest”. He also wanted to know about his secured creditors “so he [could] look into buying back his beneficial interest”. But nothing came of that.[5]The administration of the bankruptcy was transferred to the Protracted Realisations Unit with a view to the realisation of the Appellant’s interest in Elmar Road for the benefit of his creditors. The Appellant then wrote on 21 February 2001 to the PRU to say that he was not sure he had any interest in Elmar Road and that the entire beneficial interest might belong to his mother (as she was asserting). He set out what he described as “the major facts”. These were that the purchase price of Elmar Road was £6750; that his mother provided the deposit of £2000 and that the Appellant and his mother together obtained a mortgage for £4750; and that the Appellant’s mother provided money for him to pay monthly mortgage instalments up to about 1981-82, at which point the Appellant paid off the balance of the mortgage. He said he had also paid for substantial work to be carried out to the property. (This reference to paying for works confirmed the description of his liabilities which the Appellant had given to the Official Receiver showing some £86,000.00 which he had borrowed to “fix up” or improve the house). He produced a Memorandum signed by himself and Mrs Ellis recording that “the £2000.00 on the … property is contributed solely by [his mother]”.[6]The trustee was not dissuaded by that and began the realisation of the interest which he claimed. The trustee wrote to Mrs Ellis, who instructed solicitors. The solicitors’ letter of response said; “[The Appellant] did not contribute financially to the property and in fact he wrote a letter to the Insolvency Service in February last year, to which he agrees this was the basis on which the property was purchased…She is not however in a financial position to take court proceedings to obtain a declaration that she owns a greater percentage than 50% of the ownership of the property… If you are not able to entertain or consider that our client has a greater than 50% interest in the property, would you at least confirm that no action will be taken regarding repossession of the property and sale of the same whilst our client is still alive”.[7]The trustee did not press for a sale. Instead he continued to offer to sell the bankruptcy estates interest in Elmar Road to Mrs Ellis. But the process got nowhere and in view of the approach of a realisation deadline arising from the terms of section 283A IA 1986 the trustee gave notice of his intention to realise the Appellant’s interest. On 22June 2006 the mother again instructed solicitors who gave her advice as to her position and recorded her wish “to buy out the share”. But although (according to her solicitors’ letter of 21 July 2006) Mrs Ellis was seeking to raise money through an equity release scheme she was unsuccessful; eventually she could not afford solicitors (according to a letter from her former solicitors in September 2006).[8]On the 15 January 2007 the trustee in bankruptcy issued an originating application seeking a declaration that he (as the Appellant’s trustee in bankruptcy) and Mrs Ellis were beneficially entitled in equal shares to Elmar Road (and seeking in the alternative an enquiry and declaration as to their respective interests). He also sought an order for possession and sale. Both the Appellant and his mother were named as Respondents to this application, but neither participated in the proceedings at all.[9]On 8 March 2007 Registrar Derrett declared that the Appellant and the mother were beneficially entitled in equal shares to Elmar Road, ordered that the property be sold with vacant possession, ordered that possession to be given up on the 5April 2007 and removed the Appellant as one of the registered proprietors (appointing his trustee in bankruptcy in his place). Mrs Ellis was ordered to pay the trustees costs (which were to be deducted from her interest in the proceeds of sale).[10]The trustee’s agents began to put this order into effect; but neighbours in Elmar Road said that Mrs Ellis behaved eccentrically, and the trustee thought that he ought to enquire into her mental capacity. No formal finding as to her capacity appears to have been made and no application was made to discharge the Order dated 8 May 2007. But there were proposals to appoint a litigation friend to act for Mrs Ellis and to seek the court’s approval to a compromise; but before any of that could be put into effect Mrs Ellis died. She died intestate, and it appears that the Appellant is her sole beneficiary. He has obtained a grant of representation to her estate. It then became in the Appellant’s interest to argue that Elmar Road was held in trust for his mother, that no part of it fell into the bankruptcy estate, and that he should receive the entirety as the only person entitled to inherit his mother’s estate.[11]Because of the uncertainties created by the doubts over Mrs Ellis’ mental capacity the trustee issued an application returnable on 20 May 2010 against the Appellant (both in his capacity as the bankrupt and in his capacity as his mother’s personal representative) again seeking a declaration as to the beneficial interests (or alternatively in enquiry) and new orders for possession and sale, but this time adding a claim that the Appellant (as the personal representative of his mother) should pay an occupation rent in the sum of £37,800 as representing half the annual letting value of Elmar Road in respect of 6 years worth of occupation by the Appellants mother. The final prayer was “For such further or other relief as to this court shall see just or appropriate including (but not limited to) affirming the court order dated 8 March 2007”.[12]On the 20 May 2010 the Appellant sought an adjournment of the proceedings to the European Court of Human Rights: but the Chief Registrar gave directions for the filing of evidence by the Appellant. The Appellant filed a witness statement which began “I appreciate that a witness statement should comprise factual statements rather than legal arguments. Nonetheless I think it may be helpful if I do address certain issues of law that arise in this case, so that the Applicant can make a considered decision now whether he wishes to continue with the case”.[13]The points the Appellant made were that the order of the 8 March 2007 could not be “confirmed”, that it was necessary to make an entirely fresh application, that no entirely fresh application could be made because of the provisions of section 283A IA 1986, that he wished to rely on the doctrine of laches, and that he disputed that he had a 50% share in the property at the time of his bankruptcy asserting that “the property belonged primarily to my mother”. The witness statement continued to give very little more than had been asserted in the February 2001 letter by way of evidence. It disputed the occupation rent as a matter of principle, but did not challenge any of the evidence which had been given on behalf of the trustee in bankruptcy in support of the figure of £37,800 which he claimed.[14]On the 23 September 2010 a further directions hearing was held. The Appellant appeared in person and applied for an adjournment of the hearing pending the determination of certain preliminary issues by a Judge. But this application was refused and the hearing of the trustee’s application was listed for the 11 February 2010. Accordingly since 23 September 2010 the Appellant was in a position to prepare his case for the hearing. The Appellant also indicated that he wished to put in evidence a book that had been written by his mother, and he was given the opportunity to do so. He did not take that opportunity. The evidence was therefore closed.[15]On the 20 January 2011 “Charles-Henry & Co Solicitors and Advocates” came on the record as acting for the Appellant. On the 9 February 2011 they wrote to the Court to request an adjournment of the hearing listed for 11 February. In circumstances which are not known the case was taken out of the list. The trustee in bankruptcy accepted the position. The hearing was relisted for the 24 May 2011.[16]At 4.00 pm on 23 May 2011 Charles-Henry & Co wrote to the trustee’s solicitors asking for an adjournment of the next day’s hearing. They enclosed a draft witness statement which they said they were copying to the court. This witness statement said that the Appellant was unable to concentrate because his health had deteriorated over the preceding week due to the fact that the Law Society had on 17 May 2011 refused to agree an adjournment of an imminent hearing in the separate proceedings they were conducting. No medical evidence was proffered. The witness statement also dealt with some family difficulties that the Appellant was dealing with. Charles-Henry& Co informed the trustee that they had instructed Counsel on 4 May 2011 but that due to the Appellant’s deterioration in health because of the “Law Society’s actions of last week” they had withdrawn instructions and told Counsel not to attend. They indicated that they themselves would not be attending the hearing “as we cannot throw away the Charity’s funds in requesting an adjournment” (the reference to “the Charity” being a reference to themselves). The trustee’s solicitor’s responded to the effect that Charles-Henry & Co were on the Court record, and that if the Appellant wished to obtain an adjournment then he was required to make an application to the Court in the usual way and to explain to the Court these repeated requests for adjournments.[17]Notwithstanding that clear statement, when the matter came before Registrar Derrett on the 24 May 2011 the Appellant did not attend nor was he represented by the Solicitors on the record or by Counsel. The Court had only the unsigned witness statement of the Appellant: Counsel for the trustee provided a signed copy which had been faxed to his solicitors the preceding evening. The Appellant’s wife attended court to tell the Registrar that the Appellant had “gone to the doctor’s”. The Registrar took the view that it did not make sense to stand Counsel down; and expressed surprise that the Solicitors on the record had not attended to apply for an adjournment.[18]The Registrar decided to continue with the hearing and in her judgment at its conclusion recorded that she had heard the trustee’s Counsel’s submissions both on an adjournment and on the merits and confirmed that “in the circumstances [she was] not prepared to adjourn the application..[being satisfied] that is not in the interest of justice to do so and that it would be disproportionate”.[19]The Registrar then determined the application. She noted that the Appellant had been ordered to attend for the purposes of cross-examination and, having failed to do so, the application effectively proceeded unopposed. However, she noted that the Appellant had filed evidence and said “In my judgment in order to dispose of the application fairly it is appropriate to address the points he made in that evidence”.[20]Having considered the background to the application then before her, she dealt first with the position of the Appellant, holding:
“As [the Appellant] failed to offer any resistance to the application when originally made, he is bound by the terms of the [2007] Order and the matters determined thereby, including his 50% beneficial interest, are res judicata”
. Those are plainly not the only considerations which the Registrar had in mind because later in her judgment (at paragraph [56]) she records that she considered the fact that Elmar Road was acquired in joint names gave rise to a presumption that it was to be held by the proprietors for themselves in equal shares (a proposition she considered was confirmed by Stack v Dowden ); and that the Appellant’s evidence did not begin to establish some other arrangement or agreement with his mother.[21]She then dealt with an additional claim for relief which had been made against the Appellant. The Appellant had applied for the annulment of his bankruptcy; his application had been dismissed and he had been ordered in February 2010 to pay £7500 in costs. When the trustee sought to recover that money the Appellant had said that it would have to come out of his share of the proceeds of sale of Elmar Road. So the trustee now sought before Registrar Derrett an order that that £7500 should be deducted from Mrs Ellis’ share (eventually payable to the Appellant) under the order for the distribution of the proceeds of sale that she was being invited to make. The Registrar acceded to that request. She said “Whilst this might be seen as an usual order to make I am satisfied … that in the absence of any alternative offer of payment being made by [the Appellant] this is the only way that [the trustee] is going to recover the costs to which he is entitled pursuant to the Court’s order. It is acknowledged that it would be possible to obtain a further bankruptcy order against [the Appellant] in respect of the costs order, but in my judgment it would be disproportionate to incur further costs unnecessarily… ”.[22]The Registrar then turned to consider the position of Mrs Ellis. She noted that the trustee had no grounds for suspecting any lack of capacity on the mother’s part; but that she was content for the present application to proceed on the footing that Mrs Ellis did indeed lack capacity. Having considered provisions in the Insolvency Rules and in the CPR the Registrar then identified the available options in these terms;- “The Court can make an order under its inherent jurisdiction, CPR Part 3 case management powers and/or under CPR 21.3(4) confirming that the [2007] Order is effective, notwithstanding the fact that [Mrs Ellis] may have been mentally incapacitated; or equally the Court could set aside the order against [Mrs Ellis] under CPR Part 3, Insolvency Rule 7.47 and/or under its inherent jurisdiction and make an new order.” The Registrar decided to confirm the order saying “I am satisfied that it is right that I should confirm the [2007] Order. Until shortly before the hearing at which the [2007] Order was made [Mrs Ellis] was represented by solicitors. The evidence from her solicitors shows that, while she had various complaints about the conduct of her son and argued that she ought to be entitled to an interest of more than 50% [in Elmar Road] she nevertheless indicated that she would accept an order of 50% if she were able to remain in the property for the rest of her life. In the event that is what had occurred. After the [2007] Order was made, there was some suggestion that she might purchase the interest of [the Appellant] from [the trustee] but it seems that was not possible and thereafter concern arose about her mental capacity. In these circumstances I am satisfied in the interest of justice that [Mrs Ellis] achieved her desired objective which was to remain in the property undisturbed until her eventual death having retained the 50% interest in [Elmar Road].” She then went on to consider whether that conclusion prejudiced the Appellant and decided that it did not.[23]She awarded an occupational rent after taking into account(a) the fact that this relief had not been sought in 2007;(b) the juridical basis on which it might be ordered (as set out in French v Barcham [2008] EWHC 1505);(c) the period for which it should be awarded (a notional 6 year period of occupancy); and(d) the rate at which it should be ordered (the lower end estimate of market rental value evidenced by an expert valuation in 2009).[24]For these reasons on 24 May 2011 Registrar Derrett made an Order confirming the Order of 8 March 2007, and varying the direction as to the distribution of the proceeds (so that from the mother’s share there should be deducted £37,800 in respect of an occupational rent and £7500 in satisfaction of the costs ordered to be paid by the Appellant on 17 February 2010); but in order to protect creditor’s of the mother’s estate or other creditors of the Appellant she further ordered that in the event that the mother’s estate proved to be insolvent or in the event that another bankruptcy order was made against the Appellant then in either case the office holder could apply to set aside the deduction of the £7500 costs.[25]The Appellant appealed this Order. His Appellant’s Notice annexes two documents. First, there is a letter from a Doctor dated 24 May 2011 (the date of the hearing before Registrar Derrett) which says :
“The above named saw me today very distressed and upset with multiple problems. My diagnosis is that he is suffering from anxiety depression. And he is prescribed medication for it. If his problem persist or get worse I will refer him to a Consultant Psychiatrist.”
[26]The second document was headed “Grounds of Appeal” and advanced the following grounds :- a) The Registrar erred in law when she refused to allow any hearsay evidence from absent witnesses: b) The Registrar erred in law in going ahead with the hearing “when the court had been informed that the Appellant was medically unfit to attend court”; c) The Registrar erred in law in confirming the 2007 Order and awarding an occupational rent. There follow two sub-paragraphs which allege(i) that the mother was a person under a disability so that the only proceedings that could be issued against her were a claim form; and(ii) that no claim form had been issued before 31 March 2007 so that all proceedings commenced by the trustee should have been dismissed. d) A ground (which presumably identified an error of law) saying “The only interest the Appellant had in [Elmar Road] was trust property held for the benefit of [Mrs Ellis]. The … trustee has not now and never had any interest in the property”.[27]There is now before me the Appellant's application for permission to appeal with the hearing of the appeal (subject to permission) to follow. The Appellant has been represented by Mr Allston; and the respondent trustee by Mr Boardman. It was clear to me that Mr Allston was inadequately instructed (his instructing solicitors having failed to provide him with a complete copy even of the sparse and inadequate papers which they had included in the appeal bundle). I would record my thanks to him for presenting a full and coherent argument in those circumstances; and to the legal representatives for the trustee in remedying the deficiencies on the Appellant’s side.[28]I will first deal with the general approach to be adopted at this hearing.[29]This hearing is an appeal. It is limited to a review of the decision of the Registrar: and I may allow the appeal only if her decision was wrong or was unjust because of a serious procedural irregularity. For that reason under CPR 52PD paragraph 3.2 the Appellant was obliged to set out clearly the reasons why the Registrar’s judgment was wrong. The appeal is confined to those grounds. The appeal must be determined on the evidence that was before the Registrar: the Appellant made no application to adduce additional evidence.[30]The appeal arises out of an order made at a hearing which the Appellant did not attend. CPR 39.3(3) and (5) give a party who did not attend a trial the opportunity to have the order then made set aside, provided that certain conditions can be met. In Bank of Scotland plc v Pereira [2011] EWCA Civ 241 the Court of Appeal gave consideration to the position of party who did not avail himself of that opportunity but instead appealed. Shortly put, an appellant cannot achieve by the back door of an appeal that which could not have been achieved by an application under CPR 39.3, but there may be distinct grounds, unconnected with his absence from the trial, on which he may nonetheless be entitled to appeal: see the judgment of Lloyd LJ at paragraph [77] and that of Gross LJ at [117]. The leading judgment was given by the Master of the Rolls. At paragraph [47] he considered the position of an appellant who made no application under CPR 39.3 but appealed the trial judge’s decision and sought to introduce fresh evidence or sought an order for a retrial. He said (by reference to an earlier paragraph) that such an appellant would normally be in severe difficulties in seeking to contend that he should be entitled to rely on evidence which was not before the trial judge, or that there should be a retrial. That picked up an earlier observation. He had earlier said (at paragraph [38]) that if at the hearing the judge had made an appealable decision then a non-attending party’s ability to challenge the decision by way of an appeal should in principle be the same as that of the party who had attended: but he added at paragraph [39]:- “It is important to emphasise the words “in principle” …. In practice a defendant who has not attended the trial may face greater difficulties in pursuing an appeal than one who has….[A] defendant who has not attended trial is far more likely to have to persuade the appellate court that [he] should be permitted to adduce evidence or raise arguments of law not adduced or raised at trial. ”[31]In the light of that introduction I turn to the applications before me. It is not sensible to begin with a separate consideration of whether there should be permission to appeal (since in the present case that involves considering the merits of the appeal itself). I will therefore address the merits and consider what order ought to be made at the end.[32]I will deal first with the ground of appeal which asserts that the Registrar erred in law in failing to grant an adjournment. This ground is directly related to the Appellant’s failure to attend the trial. The decision whether to grant or to refuse an adjournment is a case management decision. It is to be exercised having regard to the “overriding objective” in CPR 1. Showing that the exercise of discretion was outside the generous ambit within which there is reasonable room for disagreement is not an easy task: see Khudados v Hayden [2007] EWCA Civ 1316. In Fitzroy Robinson v Mentmore Towers [2009] EWHC 3870 (TCC) Coulson J at paragraph [8] set out some of the factors that might be relevant to an 11th hour application to adjourn a trial. But each case must turn on its own facts (and in particular upon how late the application is made).[33]Registrars, Masters and district judges are daily faced with cases coming on for hearing in which one party either writes to the court asking for an adjournment and then (without waiting for a reply) does not attend the hearing, or writes to the court simply to state that they will not be attending. Not infrequently “medical” grounds are advanced, often connected with the stress of litigation. Parties who think that they thereby compel the Court not to proceed with the hearing or that their non-attendance somehow strengthens the application for an adjournment are deeply mistaken. The decision whether or not to adjourn remains one for the judge. The decision must of course be a principled one. The judge will want to have in mind CPR1 and (to the degree appropriate) any relevant judicial guidance (such as that of Coulson J Fitzroy or Neuberger J in Fox v Graham (“Times” 3 Aug 2001 and Lexis). But the party who fails to attend either in person or through a representative to assist the judge in making that principled decision cannot complain too loudly if, in the exercise of the discretion, some factor might have been given greater weight. For my own part, bearing in mind the material upon which and the circumstances in which decisions about adjournments fall to be made (and in particular because the decision must be reached quickly lest it occupy the time listed for the hearing of the substantive matter and thereby in practice give a party relief to which he is not justly entitled) I do not think an appeal court should be overcritical of the language in which the decision about an adjournment has been expressed by a conscientious judge. An experienced judge may not always articulate all of the factors which have borne upon the decision. That is not an encouragement to laxity: it is intended as a recognition of the realities of busy lists.[34]In the instant case the Appellant has to demonstrate that on the material then before her the Registrar exercised her discretion wrongly as a matter of law, and he has also to demonstrate that in fact he had a good reason not to attend the trial.[35]In my judgment there were ample grounds upon which the Registrar could properly refuse the adjournment (whether she expressly referred to them or not). There was a history of making applications for adjournments at each stage. The hearing before her was itself a re-listed hearing. There was evident non-cooperation in preparing for the trial. Even on the Appellant's own case he had made his application for an adjournment at the last possible moment. He adduced no medical evidence. His solicitor deliberately withdrew instructions from Counsel and told Counsel not to attend the hearing. The solicitor on the record made a conscious decision not to attend the hearing. The application was already a year old (partly because the Appellant had sought adjournments to put in evidence and had then not done so) and related to a bankruptcy that had commenced in 1994. The Court could if the hearing proceeded take into account such evidence as he had adduced (even if it did not have the benefit of the criticisms he wanted to make of the trustee’s case all the benefit of any argument he wanted to advance in support of his own). The Appellant would always have available the opportunity afforded by CPR 39.3.[36]Can the Appellant demonstrate on this appeal that he had good reason not to attend the hearing (as he would have to do under CPR 39.5)? In my judgment he cannot. The Appellant was evidently able to think about the case on 24 May 2011 (because he went to a doctor and asked for a letter that he could use in the case, plainly to be deployed in the event that an adjournment was not granted): if he could do that then he could come to Court, as his wife did. He has made no application to adduce in evidence that letter (and so has not placed before the court any of the factual material necessary to demonstrate that a medical report could not with reasonable diligence have been obtained before the hearing before the Registrar). But I will consider that additional evidence. In my judgment it falls far short of the medical evidence required to demonstrate that the party is unable to attend a hearing and participate in the trial. Such evidence should identify the medical attendant and give details of his familiarity with the party’s medical condition (detailing all recent consultations), should identify with particularity what the patient’s medical condition is and the features of that condition which (in the medical attendant’s opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party’s difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case). The letter on which the Appellant relies is wholly inadequate.[37]The Appellant complains that the failure to grant the adjournment is a breach of his human rights. The complaint is misconceived. The Appellant’s right to a fair trial means that he must have a reasonable opportunity to put his case. He had that right on 9 February 2011 (but asked the Court to postpone it). He was urged to exercise that right by the trustee’s solicitors on 23rd May 2011: but he and his legal representatives chose not to avail themselves of it.[38]This ground of appeal fails.[39]I turn to the ground of appeal which says that the registrar erred in confirming the 2007 Order in the light of Mrs Ellis’ incapacity.[40]Subject to specific provisions of the Insolvency Rules the provisions of the CPR apply to proceedings under IA 1986 with any necessary modifications, except in so far as inconsistent with the Insolvency Rules: IR7.51A(2) replacing IR 7.51. IR 7.44 deals with the ability of the court to appoint a person to represent or act for an incapacitated person. But subject to those provisions, the provisions of CPR 21 apply. I agree with Vos J’s view in de Toucy v Bonham’s (2 November 2011 Lawtel) that there is no conflict between the CPR and the IR.[41]In Masterman-Lister v Brutton [2002] EWCA Civ 1889 the Court of Appeal considered (at [30] and [31]) how the provisions of CPR 21 apply if incapacity becomes apparent in the course of proceedings:- “But what if …. the claimant did lack capacity but without any fault on anyone's part, no-one recognised that fact? … CPR 21 [is] worded in such a way as to indicate that in that event the litigation is ineffective and decisions made in the course of the litigation are invalid…. But CPR 21.34 does suggest a solution. It provides:
“Any step taken before a child or patient has a litigation friend shall be of no effect unless the court otherwise orders”…. So a court can regularise the position retrospectively… provided everyone has acted in good faith and there has been no manifest disadvantage to the party subsequently found to have been a patient at the relevant time I cannot envisage any court refusing to regularise the position. To do this otherwise would be unjust and contrary to the overriding objective… but in any given case the ultimate decision must depend on the particular facts…. finality in litigation is also important, and the rules as the capacity are not designed to provide a vehicle for reopening litigation which having apparently been properly conducted… has for long been understood to be at an end. ”
[42]Although this passage was not drawn to the attention of the Registrar she plainly had the rule in mind and through her knowledge and experience identified the correct approach to its application.[43]The Appellant’s grounds of appeal suggests that CPR 21.3(4) was not available to the Registrar since CPR 21 directs that proceedings against an incapacitated person must be commenced by claim form, whereas the trustee had used an originating application. The point is bad. CPR 21 falls to be applied in the case of insolvency proceedings “with any necessary modifications”. The fact that the originating process is given a different name in insolvency proceedings does not matter.[44]The Appellant argues that CPR 21.3(4) could not be used in 2011 to confirm a 2007 order because of the effect of what he called “the three-year limitation period which expired 31 March 2007”. The point is a bad one. Section 283A IA 1986 deals with where a bankrupt’s estate includes an interest in a dwelling house which at the date of his bankruptcy was his principal residence. Section 283A(2) says that at the end of the period of three years beginning with the date of the bankruptcy that interest ceases to be comprised in the bankruptcy estate. Section 283A(3) says that that restriction does not apply if during that three-year period the trustee applies for an order for sale. In the instant case the three-year period began to run on 1 April 2004 and expired on 31 March 2007: Stonham v Ramrattan [2011] EWCA Civ 119. Before 31 March 2007 trustee had applied for order for sale. The proceedings were validly commenced by an originating application. Because of Mrs Ellis’ assumed incapacity the proceedings remained to be brought to a conclusion. The trustee did not need to issue a fresh originating application and commence fresh proceedings: he needed only to issue an ordinary application in the existing proceedings. No substantial injustice can be caused by treating the 2010 originating application as if it were ordinary application in the 2007 proceedings (for such an application could even now be issued).[45]There is therefore nothing in the ground of appeal which suggests that the Registrar did not have jurisdiction to confirm the 2007 Order. I turn to the next ground which challenges the exercise of the jurisdiction. There are three strands.[46]First, the assertion that the Registrar erred in law in refusing to allow any hearsay evidence from absent witnesses. I shall say no more about this than that it is plainly wrong because the Registrar did consider the only evidence that the Appellant had submitted (notwithstanding that he did not attend for cross-examination upon it). He cannot complain that she did not consider evidence that he had not adduced.[47]Second, the general and unparticularised ground that she erred in law in purporting to confirm the[48]Mr Allston argued that the Registrar’s process of reasoning was(a) to hold that the Appellant was personally bound by the 2007 finding that he had a 50% share:(b) but that left only 50% so that the Registrar felt bound to hold that the Appellant as personal representative of Mrs Ellis could only have 50%;(c) that Mrs Ellis had in effect agreed to accept only 50% provided she could live in the house until she died, and that it happened. He says that what she should have done was to have reconsidered the whole question of the beneficial interests in Elmar Road because no litigation friend had ever argued out Mrs Ellis’ interest.[49]This is not a fair summary of the Registrar’s judgment. But since the judgment is shortly expressed, and some of its reasoning is implicit, in fairness to the Appellant I will set out why I agree with the Registrar’s order at some greater length.[50]The Registrar was exercising the jurisdiction under CPR 21.3(4). She was bound to ask herself what was the just course to take in the circumstances as they existed in 2011 (not what would have been the just course to have taken in 2007 if Mrs Ellis’ capacity had then been known). This involved considering whether there was some case on the merits which Mrs Ellis (because of her lack of capacity) did not advance in 2007 but which ought to justly to be advanced in 2011 now that the issue had arisen before the Court. She was therefore entitled to take into account (before reaching a conclusion) the fact that Mrs Ellis herself had now died (having lived in the property as she had wished) and that any argument would be advanced for the benefit of those entitled on intestacy.[51]In examining claims to a beneficial interest it is necessary to start with the legal title. The legal title was in joint names. In such a case the court must first enquire whether the parties intended their beneficial interests to be different from their legal interests: and only then enquire in what way and to what extent they were to be different (see Stack v Dowden [2007] UKHL 17 para [66]). The burden would lie on Mrs Ellis’ to show that prior to 1994 something other than a beneficial joint tenancy existed.[52]The form of registration suggested (but did not conclusively establish) joint beneficial ownership. The entry of a restriction in 1991 suggested (but did not conclusively establish) a severance of that joint beneficial ownership. Such a severance would have resulted in a tenancy in common in equal shares. Producing evidence to show that there had been unequal contributions to the purchase price would not of itself establish something other than an initial beneficial joint tenancy. It is said in Stack (supra) at paragraph [68] “The burden will .. be on the person seeking to show that the parties did intend their beneficial interests to be different from their legal interests, and in what way. This is not a task to be likely embarked upon… It cannot be the case that all the hundreds of thousands, if not millions, of transfers into joint names using the old forms are vulnerable to challenge in the courts simply because it is likely that the owners contributed unequally to their purchase. In law “context is everything”…….. ”.[53]What evidence was there about financial contributions? Only evidence that both owners had contributed heavily and without apparent regard to questions of beneficial ownership to acquire and improve the property. There was a memorandum that Mrs Ellis had paid the deposit: but that suggests only that one day that extra contribution would have to be sorted out, not that it affected property interests.[54]What other context was there? As to acquisition, only that it was a purchase by mother and son. As to subsequent dealing only that for a substantial period the son lived there and the mother did not: and that when the son became bankrupt and for seven years thereafter the son adopted the position that he was an equal co-owner, with the mother not saying the contrary until about 2001 (and then only advancing a case based on contribution).[55]In these circumstances was it just in 2011 to conduct a further enquiry whether the beneficial ownership differed from the legal ownership (and if so to what extent)? And to do so in practice for the benefit of the son who had from 1994 to 2001 given the trustee to believe that the bankruptcy estate was entitled to 50%, who had not participated in the proceedings in 2006 to say otherwise, and who had not sought to appeal the 2007 Order as having reached a legally wrong conclusion? In my judgment it would not be just. That was the view reached by the Registrar in whose reasoning much of what I have set out above is implicit.[56]I would therefore dismiss the appeal on this ground as well.[57]I would also dismiss the appeal against the occupation rent. Although he had put in evidence taking legal points the Appellant did not contend that the award of an occupation rent was not lawfully open: he said that it would be oppressive because no earlier demand had been made, but did not give evidence of any facts upon which that submission was based. He did not challenge the trustee's evidence as to the appropriate rate.[58]On his behalf Mr Allston has argued that an occupation rent should not simply be one half of the rental value, relying on Dennis v McDonald [1982] Fam 63. This was not a point taken before the Registrar. A party who does not attend a trial and on appeal then seeks to raise a legal point must persuade the appeal Court that this is a just course to take: I am not persuaded. By telling Counsel not to attend the hearing the Appellant lost the opportunity to advance such legal points. I take the same view of the submission that it was wrong to rely on a 2009 valuation date to fix the rent for a period running from 2002 until 2008. The point might be a good one: if so it should have been taken in the evidence or at trial. The sum sought by way of occupation rent was clearly stated in the application. The Registrar had only the unchallenged 2009 valuation with which to work.[59]I would dismiss any appeal relating to the £7500 ordered to be paid out of the monies received by the Appellant as personal representative of Mrs Ellis. There is no mention of a challenge to this in the Grounds of Appeal: but in any event I see no reason to interfere with the practical solution at which the Registrar arrived in dealing with the outstanding costs (and which adopted a suggestion the Appellant himself had made). The trustee is recouping himself out of monies for which he has to account to the Appellant in his capacity as personal representative (and which will be payable to the Appellant as sole beneficiary) in respect of a debt owed by the Appellant personally. That is a short cut: but in my judgment permissible provided that the creditors of the estate and other creditors of the Appellant who might have an equal or prior claim were protected. The Registrar recognised that and provided accordingly.[60]In the result I would grant permission to appeal but dismiss the appeal.

order

as an indulgence to the Appellant I will treat this as a properly formulated ground. Third, the assertion that the only interest the Appellant had in Elmar Road was as trustee for Mrs Ellis: as an indulgence to the Appellant I will treat this as an assertion of an error of law (i.e. as meaning that the Registrar's decision to confirm the 2007 order was not open to her because she could not on the evidence conclude that the appellant had any interest).

Cited in 86 later judgments

and 41 more of the most senior

Showing the 50 most senior of 86.