Haastrup & Anor v Haastrup & Anor [2016] EWHC 3311 (Ch)

[2016] EWHC 3311 (Ch)Case No HC-2015-001372
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/12/2016
Before
MASTER MATTHEWS
Between
(1) Gloria Ngozi HaastrupClaimants(2) Emmanuel Ademola HaastrupClaimant(1) John Adewale HaastrupDefendants(2) Universal Trading & Shipping LtdDefendant
Daniel Burton (instructed by Penningtons Manches LLP) for ClaimantsMichael Biggs (instructed by Alpha Rocks Solicitors) for DefendantsHearing Hearing dates: 28-29 September 2016
Judgment ApprovedMaster Matthews :Introduction
[1]This is my judgment on two applications before the court. One is made by the Defendants by notice dated 19 February 2016 (but sealed by the Court only on 25 February 2016) to strike out the claim or alternatively for summary judgment. It is supported by the witness statement of Isi Inyang dated 19 February 2016 and a witness statement of the First Defendant dated 9 March 2016. The second is made by the Claimants by notice dated 4 March 2016 for an order appointing the Claimants under the Senior Courts Act 1981, s 116, as personal representatives of the estate of the late Captain Israel Ademola Haastrup (“Captain Haastrup” or “the deceased”), limited to a grant ad colligenda bona or ad litem, alternatively for an order joining the estate of Captain Haastrup to the proceedings. It is supported by the witness statement of the First Claimant dated 4 March 2016 and the witness statement of the Second Claimant dated 8 March 2016.

The Claim

[2]These applications are made in the context of a claim commenced by claim form dated 2 April 2015, seeking an injunction against the Defendants from dealing further with the proceeds of the sale of property known as Westrock Motel, Stonehouse Lane, Purfleet RM19 1NS, and an order that the First Defendant account with respect to his dealings with the affairs of the estate of Captain Haastrup. The Particulars of Claim were not served with the claim form but are dated 30 April 2015. The Defence of both Defendants is dated 19 May 2015. On 2 April 2015, on the application of the Claimants, Barling J granted a without notice freezing injunction against both Defendants, in respect principally of a cheque (or its proceeds) sent from the Treasury Solicitors to the Defendants’ solicitors in the sum of £282,474.09. As will be seen, that freezing injunction remains in force.[3]This claim is only one of several that have been launched between the same or related parties, both in this country and in Nigeria, since the death of Captain Haastrup in England on 8 October 2012. They all concern aspects of his large estate which even today remains without any personal representative to administer it. Several were brought in the Chancery Division of the High Court, and after agreement with other masters I became the allocated master for all of these.

The parties

[4]As to substantive claims to the estate, the First Claimant claims to be the widow of Captain Haastrup (but is not the mother of the First Defendant). If so, she would be a primary beneficiary on Captain Haastrup’s intestacy. The First Defendant says she is not the deceased’s widow, because (he says) she was divorced from him at the time of his death. The Second Claimant is an admitted son of Captain Haastrup, born and brought up in London. A document claimed to be a will of Captain Haastrup dated 18 July 2007 exists. Under that will the Second Claimant and the First Claimant’s two minor children (but not the First Claimant) would be primary beneficiaries. But its validity is being challenged by the First Claimant in Nigerian proceedings.[5]Turning now to the Defendants, the First Defendant also claims to be a son, but also the eldest child, of Captain Haastrup. However, the paternity of the First Defendant is in issue. The Second Defendant is a company incorporated in England by Captain Haastrup as a vehicle to hold property. Put shortly, this claim alleges that the First Defendant has without authority attempted to make away with the proceeds of sale of a property owned by the Second Defendant.

The Second Defendant

[6]The Second Defendant was struck off the register on 1 July 2003, apparently because of a failure to file accounts. At that date Captain Haastrup was the sole director and shareholder, and the First Claimant was the company secretary. The company owned Westrock Motel. When the Second Defendant ceased to exist, this property therefore devolved on the Crown as bona vacantia. It was indeed sold by instruction of the Treasury Solicitor on 12 July 2012 for £347,000. As already noted, Captain Haastrup died on 8 October of that year. On about 30 August 2013, the First Defendant applied to the Companies Court in London for the restoration of the Second Defendant to the register. The application was not finally disposed of until March the following year.[7]In September 2013 the First Defendant filed or caused to be filed at Companies House forms AP01 and AP03. These two forms purported to record the appointment to the Second Defendant on 1 March 2013 (by the former) of the First Defendant as a director, and (by the latter) of a Mr Obeng as company secretary. On about 28 November 2013 the First Defendant filed or caused to be filed forms TM01 and TM02, and an annual return. The Form TM01 purported to record the termination of the deceased’s directorship as at the date of his death, and the Form TM02 purported to record the termination of the First Claimant’s secretaryship as at 1 March 2013. The annual return was dated 4 October 2013. It purported to record the registration of the transfer of the sole share in the Second Defendant from Captain Haastrup to the First Defendant on 1 March 2013.

The Nigerian Letters of administration

[8]On 20 January 2014, before the application for restoration to the register was heard, the First Defendant had obtained letters of administration in the Federal Capital Territory High Court, Nigeria, to the estate of the deceased, on the footing that he had died intestate. The Second Defendant was ultimately restored to the register on 18 March 2014, by order of Deputy Registrar Briggs (as he then was), made without a hearing. The evidence in support of the application, and the order made, both recited that the First Defendant was the administrator of the estate of Captain Haastrup, and a member and a director of the Second Defendant. On 20 June 2014 those Nigerian letters of administration were resealed in the Leeds District Probate Registry.[9]However, on 20 July 2014 the First Defendant had himself been injuncted by a Nigerian court (the Federal Capital Territory High Court) to restrain him from relying on the letters of administration or from “parading himself as in any way as the Administrator” of the deceased’s estate “within or outside Nigeria”. This injunction had been granted pending the will litigation in Nigeria. Moreover, the Leeds District Probate Registry, having become aware of the Nigerian litigation, had by letter of 27 August 2014 informed the First Defendant that it was recalling the resealed grant, pending investigation. Thereafter, on 12 February 2015 the Leeds District Probate Registry cancelled the resealed grant in this jurisdiction. I record also that the First Defendant’s appeal against the imposition of the Nigerian injunction was dismissed, although there may be a dispute between the parties as to exactly when this took place.

Procedure

[10]Coming back to this claim, the order of Barling J of 2 April 2015 came back before Newey J on 8 and again on 9 April 2015. On each occasion the order was varied to extend time for compliance by the Defendants with the disclosure aspects. On 10 April the Defendants issued an application notice seeking the discharge of the order. On 16 April Mr John Jarvis QC, sitting as a deputy judge, heard and dismissed the Defendants’ application notice to discharge the injunction, and ordered that it continue until trial or further order, with certain variations. The deputy judge ordered that only £282,000 need be preserved.[11]The Particulars of Claim were served on 30 April 2015, and the Defence of both Defendants on 19 May 2015. The Defendants sought permission to appeal and a stay of execution in respect of the order of Mr Jarvis QC. On 21 May 2015 Lewison LJ refused permission to appeal. This application was renewed orally before, but dismissed by, Beatson LJ on 10 December 2015. In the meantime, on 9 November 2015, the Claimants issued an application notice to commit the First Defendant for contempt. This was adjourned by Nugee J on 21 December 2015 to the new year. The Defendants issued a fresh application on 7 January 2016 to discharge the freezing injunction, but this was dismissed by Newey J on 14 January 2016. On 25 February, apparently following comments by Newey J and also my own judgment in Haastrup v Okorie [2016] EWHC 12 (Ch), the Defendants issued the present application to strike out the claim or for summary judgment on it. Thereafter on 4 March 2016 the Claimants issued their own application for the limited appointment of a personal representative under s 116 of the Senior Courts Act 1981.[12]All three applications (committal, strike-out and s 116) came before Asplin J on 10 May 2016. She adjourned the first until the second and third should have been disposed of, and adjourned the second and third to be heard by me. I heard them on 28 and 29 September 2016. Daniel Burton of counsel appeared for the Claimants. Michael Biggs of counsel appeared for the Defendants. I am grateful to them both. I am sorry for the delay in producing this written judgment.[13]On the two applications before me, the Defendants argued that the Claimants had launched these proceedings on behalf of the estate of the deceased, but that as they had no grant of administration to them at that time, they had no standing to bring the proceedings, and consequently they were a nullity, under the rule in Ingall v Moran [1944] KB 160 and Milburn-Snell v Evans [2012] 1 WLR 41, CA. Accordingly, the claim should be struck out.[14]The Claimants argued that they did not bring the claim as personal representatives of the estate, but as beneficiaries of it. This was either because the First Defendant had constituted himself an executor de son tort, and the Claimants sought an account and inventory from him, or by way of a derivative claim for the benefit of the estate against the First Defendant as a wrongdoer. The estate of the deceased should be joined to the proceedings under CPR rule 19.8. The Claimants also argued that the Court should make a limited grant of administration ad colligenda bona or alternatively ad litem to them under s 116 of the Senior Courts Act 1981, and that, such limited grant having been made, the problem of any lack of standing could be retrospectively cured. But the application was made only in relation to this claim and did not extend to the whole of the deceased’s UK estate. There was no application for the appointment of a receiver.

Characterisation of this claim

[15]The first issue is the question of characterisation. On whose behalf is the present claim brought? Is it brought by the Claimants(i) on behalf of the estate of Captain Haastrup, or(ii) on behalf of themselves as beneficiaries of that estate? The Defendants say they brought it for the benefit of the estate. The claim form underneath the names of the Claimants contains these additional words:
“(on their own behalf and as personal representatives of the estate of the late Israel Ademola Haastrup)”
. But the words have been struck through. The Particulars of Claim state (at paras 1, 26, 27) that it is a claim to preserve the assets of the estate of the deceased and to seek an account against the First Defendant in respect of his administration of the estate. They do not state that the Claimants claim as personal representatives or on behalf of the estate.[16]In the freezing injunction granted by Barling J on 2 April 2015, the title of the action is given in the same terms as on the Claim Form, including the words in brackets set out in the previous paragraph. But this time those words are not struck out. There is nothing in the text of the order, so far as I can see, that bears on the issue, one way or the other. Subsequent orders, including those of Arnold J on 14 April 2015, John Jarvis QC of 16 April 2015, Nugee J of 21 December 2015, Newey J of 14 January 2016 and Asplin J of 10 March 2016, do not include those words.[17]In the (uncorrected) transcript of the hearing before Barling J, on 2 April 2015, the then counsel for the Claimants, after referring to the Nigerian letters of administration and the Nigerian injunction against the First Defendant, told the judge (p 12G-H) that “nobody has actually been appointed to represent the estate in this jurisdiction.” He also told the judge (p 13G-14A) that the two Claimants were each interested in the estate, the First Claimant on intestacy and the Second Claimant if the disputed Nigerian will were upheld, and (p 13B) that they relied on “a right to seek an account as against [the First Defendant], who has plainly purported in effect to act as administrator…”[18]Counsel for the Claimants was very properly concerned to point out a potential difficulty to the judge. This was that both the claim itself and this application were in effect to try to preserve the proceeds of sale of the Westrock Motel. However, that property had never been a direct asset of the estate. Instead it had been an asset of the Second Defendant, and the deceased had been the sole shareholder in the Second Defendant. So the proceeds were a company asset rather than an estate asset.[19]However the judge saw no difficulty at the stage of granting an interim injunction. He said (at p 14C-D):
“Well, the proceeds, I cannot see a problem there. This is one of the reasons why we say you have got to have the 116, but it seems to me that if what you are trying to do is protect the assets in the interim then I would have thought your interest is good enough. Otherwise your client’s interests will go up in air as far as this property is concerned.”
[20]Counsel then suggested that there were two ways in which the Claimants could acquire an interest in the proceeds. One would be if the proceeds were distributed to the members of the company, ie the estate of the deceased. The other would be if a limited grant were made under s 116 to the Claimants, so that they would control the company.

The judge commented on the latter suggestion (at p 14F-G) as follows:

“I [am] just concerned about that, on an ex parte interim basis, frankly if it is not necessary. I think you would be better to take that before, as it would usually be brought, before the Master. It is a pretty odd thing to ask on an interim ex parte application.”
The judge added that, if the point were taken against the Claimants that they had no interest in the company, “when the point is restored then you can seek it again” (p 14G-H).[21]I have not seen a transcript of the judge’s ruling, referred to at the end of the transcript of the hearing, but in the hearing transcript there is nothing to indicate that the claim was being brought by the Claimants as personal representatives. On the other hand, there are clear indications that they claimed as beneficiaries, or potential beneficiaries of the estate. The judge evidently considered that that was sufficient for the purposes of obtaining interim relief.[22]Mr Biggs, for the Defendants, said that this claim (especially the prayer) focuses on the proceeds of sale, which belong to the Second Defendant, and not on a claim for an account against the First Defendant as executor de son tort. The proper person to sue the First Defendant for diverting the proceeds of sale would be the company, which was under the control of the First Defendant. So a claim by a shareholder of the company against a third party wrongdoer only made sense as a derivative company claim. But here the Claimants are not the shareholder: the estate is. Accordingly, this had to be a claim brought on behalf of the estate.[23]I see the logic of Mr Biggs’ argument, but in my judgment it is wrong. Apart from the uncertainty caused by the use of the words crossed out on the Claim Form but left in on the title of the original freezing injunction (and not then carried through), the Claimants made clear that they claimed, as beneficiaries of the estate, and not on its behalf, against the First Defendant in respect of his intermeddling with the estate. If that meant that the claim so far as it related to the Second Defendant was challengeable (though of course I am not so deciding), then the practical point is that no such challenge has ever been made. If there had never been an application for an ex parte interim freezing injunction, the point about standing to obtain such an injunction would never have arisen, and the matter would have been even clearer. But the judge’s view as to what interest was sufficient to justify such an injunction should not be allowed to obscure the central fact that this is a claim by beneficiaries who complain that the First Defendant has committed a wrong against them by causing loss to the estate. It is not necessary for them expressly to say he is an executor de son tort: Re Lovett (1876) LR 3 Ch D 198, 205.[24]Mr Biggs also argued that since the two claimants have different interests in the estate they must be making a derivative claim on behalf of the estate. I do not accept this as a matter of logic. They may be each making – on their case they are each making – the same claim against the First Defendant, ie that his actions have damaged each of them, on the alternative footing that each has an interest in the estate. It is clear to me that each could have brought a claim against the First Defendant as executor de son tort. Whether it is proper for them to combine their claims in one action is not before me. But the mere fact that they have done so does not mean that that they must be acting for the estate.[25]Accordingly, I hold that the Claimants have not brought this claim as personal representatives or on behalf of the estate, but on behalf of themselves. It is clear that an estate beneficiary can maintain a claim for an account from an executor de son tort: see Coote v Whittington (1873) LR 16 Eq 534. The claim cannot therefore be struck out for lack of standing under Ingall v Moran [1944] KB 160 and Milburn-Snell v Evans [2012] 1 WLR 41, CA.[26]The Defendants alternatively apply for summary judgment against the Claimants. Not much of the argument was devoted to this aspect of the application. I have considered all the material placed before me. The evidence in support of and argument for summary judgment is largely aimed at the incurable nullity argument arising from the lack of a grant of administration, rather than at the executor de son tort argument. The result is that the Defendants have not satisfied me that the claim has no reasonable prospect of success, and accordingly I cannot give them summary judgment.

Application for a limited grant

[27]Strictly, that means that I do not have to consider(i) whether the Claimants are right to argue that Ingall v Moran and Milburn-Snell v Evans do not prevent the lack of standing being cured by a grant of letters of administration after the action has been commenced, or indeed(ii) whether I would have acceded to the Claimants’ application to grant letters of administration ad colligenda bona or ad litem to them. But the matter was fully argued, and it may be helpful if I indicate, albeit obiter, the views at which I have arrived.[28]I think I should first indicate whether I would have acceded to the Claimants’ application by notice dated 4 March 2016 to grant limited letters of administration. That notice is second in time to the Defendants’ application to strike out the claim (undated but sealed by the court on 25 February 2016). But it seems to me that not only is the later application in substance a renewal of part of the application originally made to the court in April 2015 but not then pursued (because the judge did not require it to be), but also my answer to the later application would have had a significant impact on the answer to the earlier.[29]The application is supported by the witness statement of the First Claimant dated 4 March 2016, though it is supplemental to the affidavit which she made dated 1 April 2015 in support of the application to Barling J for a freezing injunction. In her evidence the First Claimant says that the Nigerian executors of the disputed will of the deceased, currently subject to litigation in Nigeria, are unwilling to take any steps in relation to the deceased’s UK estate until that litigation determines the validity or otherwise of the will. So the UK estate remains unadministered, more than four years after the death of the deceased.[30]In this claim the Claimants are concerned only with the proceeds of the sale of the motel formerly belonging to the Second Defendant. The application is for an order limited to those assets or their products. Those proceeds appear to have been paid in September 2014 to the First Defendant, who was then recorded at Companies House as the sole director of the Second Defendant, which had been restored to the register in March 2014 as already described. Plainly there is an issue as to whether the First Defendant was entitled, whether as director of the Second Defendant or otherwise, to receive these proceeds of sale or not. The court has since 2 April 2015 injuncted the First Defendant in relation to these proceeds. I must assume that such assets as that injunction bit upon are still frozen (I come back to this later).[31]A grant ad colligenda bona is made to preserve assets pending a decision as to who is entitled to a full grant. In such cases, the court is generally concerned to appoint someone who is independent and impartial, rather than connected with one of the parties in contentious litigation: Ghafoor v Cliff [2001] 1 WLR 3022.[32]Section 116 of the Senior Court Act 1981 reads as follows:
“(1) If by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this section, would in accordance with probate rules have been entitled to the grant, the court may in its discretion appoint as administrator such person as it thinks expedient. (2) Any grant of administration under this section may be limited in any way the court thinks fit.”
[33]It seems clear that the court may order a grant ad litem (not ad colligenda bona) under this section: see William, Mortimer & Sunnucks, Executors, Administrators and Probate, 20th ed, at [26-13].[34]The Claimants say that someone needs to take control of these assets, unadministered for several years, to safeguard them against loss, and that they have the support of the members of the family other than the First Defendant to apply for this order. However, that can only be on the basis that these are indeed estate assets, even if it is not known at this stage whether the estate will pass under the Nigerian will or according to the intestacy rules.[35]The First Defendant argues that the Claimants are not suitable for appointment because in the case of the First Claimant she is alleged to have misconducted herself, and in the case of the Second Claimant he is alleged to lack capacity. The First Defendant says further that there is no need for any appointment under s116 because the disclosure already given by the First Defendant under the freezing injunction is all that the Claimants could hope to obtain from him. That evidence (contained in the First Defendant’s second affidavit, dated 19 December 2015) discloses that the First Defendant has spent or caused the Second Defendant to spend more than £281,000 of the proceeds of sale on the matters there set out. Thirdly, the First Defendant says it is not appropriate to make a limited grant in order to take over the company.[36]Plainly I cannot resolve the factual disputes about misconduct and capacity in the absence of (at least) cross-examination, and I do not take them into account. But I would be concerned, if an appointment were to be made, to ensure that the persons to be appointed should be appropriate. And one undoubted difficulty with the First Claimant is that, assuming in her favour that she has not done what the First Defendant accuses her of doing, she has nevertheless been involved in a number of litigation battles following the death of Captain Haastrup, and has personal interests to defend. She cannot claim to be independent. The Second Claimant is not independent either. That is a disadvantage here.[37]As to the proceeds of sale themselves of £282,474.09, it is now over four years since the deceased died, and more than two since the proceeds were paid to the First Defendant’s solicitors. The injunction granted in April 2015 remains in force, and bites on whatever was left when it was granted. But in fact, given the evidence, it is probable that almost all of those proceeds have been paid away since receipt. On the basis that the Claimants are claiming on their own behalves, they may well be able to obtain an account from the Second Defendant. That account may demonstrate any impropriety, or the possibilities of making claims in respect of third parties. In my judgment, the position of the Claimants and the estate will therefore not be significantly improved if I now order either of the limited grants sought.[38]Grants ad colligenda bona are made to preserve assets. Section 116 is for cases involving special circumstances. There are certainly some aspects of this case which are unusual. But there are other significant features (mentioned above) which point away from ordering a limited grant. Taking account of all of these factors, I am not persuaded that, on the material before me, there was any sufficient need to make a limited grant, or that, if there were, it would have been right in this case to make an order for a grant ad colligenda bona or ad litem to the Claimants, in relation to the proceeds of the sale of the motel.

The incurable nullity problem

[39]In these circumstances, dealing with the last point (now, of course, hypothetical) becomes slightly easier. Simply put, the question is this. If a person commences a legal action claiming as an administrator or otherwise on behalf of a deceased’s estate (but not as executor of the deceased’s will), but does not allege a grant of letters of administration before the issue of the claim, can the action be struck out if the person subsequently obtains or at least seeks a grant of administration?[40]The decision of the Court of Appeal in Ingall v Moran [1944] KB 160, that a claim begun by a person on behalf on an estate who at that date did not have a grant was an “incurable nullity” (see at p 165, per Scott LJ), was applied recently by the Court of Appeal in Milburn-Snell v Evans [2012] 1 WLR 41. I also discussed it even more recently in another case between some of the same parties, Haastrup v Okorie [2016] EWHC 12 (Ch). I shall not repeat the discussion here. (As to the last case, I record that there was no argument at the hearing in the present case that there was any kind of res judicata operating between the First Claimant and the First Defendant, as the two main parties in the earlier case, nor any application of the related rule in Henderson v Henderson. So I do not consider those matters here.)[41]But in the present case it was argued that I should follow the recent decision of Peter Smith J in Meerza v Al Baho [2015] EWHC 3154 (Ch) (not cited in Haastrup v Okorie [2016] EWHC 12 (Ch)). There the judge appears to have held that the court had power to order the grant of letters of administration after the commencement of a claim and then treat that grant as conferring title to sue retrospectively. A deceased died in 2003 domiciled in Kuwait. One of the Claimants in that case was the daughter of the deceased. She brought a claim in respect of immovable property, and claims related thereto, situate in England (“the English Estate”), apparently on behalf of the estate of the deceased. It was alleged that the deceased was the beneficial, though not the legal, owner of such property.[42]At the date of the issue of the Claim Form, the daughter had no grant in respect of any part of the estate of the deceased. She was just a beneficiary, or potential beneficiary, of his estate. But subsequently she was granted letters of administration of the English Estate for the use and benefit of her mother, a widow of the deceased. She accepted that without such grant she would have no title to sue. In fact the Defendants acquiesced “for a substantial period” in her title to sue despite the lack of letters of administration, and the action proceeded. However, later, the First Defendant and the Third Defendant applied to strike out the claim by her on the basis of her lack of title.[43]The judge was referred to Millburn-Snell v Evans, and to another case which followed it, Hussain v Bank of Scotland plc [2012] EWCA Civ 264. He specifically considered the Court of Appeal’s decision in Haq v Singh [2001] 1 WLR 1594, which preceded it, but on which the Court of Appeal in Millburn-Snell made some adverse comments. However, the judge also considered another line of authority, seemingly based on Hendry v Chartsearch Ltd [1998] CLC 1,382, CA. This suggested that there was no rule of “incurable nullity” as suggested in Ingall v Moran, but instead a discretion vested in the court to permit amendments even adding new causes of action accrued since the claim was issued, if the justice of the case so required it. Hendry was followed by the Court of Appeal in Maldrive & Oil Services (SAE) v CNA Insurance Company (Europe) Ltd [2002] EWCA Civ 369, and by the judge himself in Midtown Ltd v City of London Real Property Co Ltd [2005] EWHC 33 (Ch).[44]Peter Smith J said (at [46]) :
“It seems to me that based on those authorities (which were not cited in [Millburn-Snell v Evans and Hussain v Bank of Scotland]) I have a discretion under CPR 3 to apply the overriding objective to enable cases to be dealt with justly. In particular based on Chadwick LJ’s observations above [in Maradrive at [54]]it seems to me clear that that power can be used to ensure that any technical objections whether procedurally or a matter of law can be overcome provided it is just so to do. In the present case it is clearly just to accede to an application to amend to perfect the claim by reason of the grant of the letters of administration if that were necessary.”
[45]With all due respect to Peter Smith J, I have to say that I find this a difficult passage to follow. CPR Part 3 is concerned with case management powers. These powers are set out in CPR rule 3.1(2) beginning with the words, “Except where these Rules provide otherwise…” None of the powers there set out deals with power to amend claims or add or substitute parties. Those matters are instead dealt with by CPR Part 17 (amendment generally) and CPR Part 19 (change of parties). It is difficult enough to see how the “overriding objective” can allow the court to ignore the provisions of specific rules concerned with amendment. But in any event, the judge’s decision in Midtown is based on Hendry and Maradrive, and Maradrive is stated to follow Hendry. Yet Hendry is a case under the RSC 1965, not the CPR. There was no “overriding objective” and no equivalent of Part 3 under the RSC 1965. So whatever Hendry is based upon, it is not the overriding objective or Part 3 of the CPR.[46]There is also the difficult question of which of the two streams of (Court of Appeal) authority the court should now follow. In other circumstances I might have had to go into that. There are for example, dicta in Roberts v Gill [2011] 1 AC 640 (not cited in either Millburn-Snell or Meerza) which might have to be taken into account. Since the hearing I have also come across two further relevant decisions. They are that of Asplin J in Courtwood Holdings SA v Woodley Properties Ltd [2016] EWHC 1168 (Ch) (following Hendry in preference to Millburn-Snell), and that of Stewart J in Kimathi v Foreign and Commonwealth Office [2016] EWHC 3005 (QB) (following Millburn-Snell in preference to Hendry).[47]But, fortunately for me, there is a real and important distinction between Meerza and the present case. That is that, in Meerza, the Claimant had obtained a grant of administration after issue of the claim but before the Defendant applied to strike out the claim. In the present case the Claimants have never had a grant of administration, and, although they have now applied for a limited grant, I have said that if it were necessary to decide the point I would have refused it. So on this view of the facts the title to the claim would not be perfected, Meerza could have no application, and I should have simply struck out the claim under Ingall v Moran and Millburn-Snell v Evans. The discretion to permit amendment to the claim to plead a subsequent grant would never have arisen.[48]However, I do not wish it to be understood that I necessarily agree with the decision in Meerza. There is a very real question as to which stream of authority is right, or whether they both are, albeit applicable to different situations. None of the cases in the ‘discretion’ stream before Meerza deals with letters of administration, whereas the cases in the ‘non-discretion’ stream do. I record that I have not had to consider these questions, which must be left for another occasion.[49]This means that I do not need to consider whether I am strictly bound by the decision in Meerza, or whether I should follow it unless convinced it was wrong. My own view on the precedent rule applicable between high court judges and masters was set out in Coral Reef Ltd v Silverbond Enterprises Ltd [2016] EWHC 874 (Ch). In an extempore judgment on appeal, on 21 October 2016, David Foxton QC, sitting as a deputy judge, dismissed that appeal, and affirmed my decision on the substance of the application (for security for costs). But he appears also to have expressed the view, necessarily obiter, that the decision of a high court judge (and, by extension, of a deputy high court judge) is binding on a master because the judicial function of a judge is to hear appeals from a master: see Lawtel Summary AC9502393 (I have not seen a transcript). Yet that does not explain (inter alia) why decisions of the master bind the county court (as the deputy judge says), or why decisions of the High Court used to bind the county court even before the change to appeal routes in October 2016. As at present advised, I do not resile from my own view.

Other points

[50]In the circumstances, I do not consider that any useful purpose would be served by considering the joinder of the estate of the deceased under CPR r 19.8. And, without the joinder of the estate, there cannot be a derivative claim properly constituted: see eg Roberts v Gill [2011] 1 AC 240, [62]. In any event, given my decision on the first point, the Claimants do not need to make a derivative claim. So I need not consider that either. As to relief against the Second Defendant, given that I have held that this claim is one by the Claimants against the First Defendant as executor de son tort, it is not clear what purpose is served by the Second Defendant’s being a party. But I have heard no submissions as to what (if anything) I should do about this, so I shall do nothing.

Conclusion

[51]In the circumstances I dismiss both applications.

Cited in 2 later judgments