Analysis
The deceased left the entirety of his modest estate to the appellant, his wife of many years. At the time of the proceedings, the appellant was a frail woman in her 80s who was profoundly deaf and living in a care home. The respondent, the estranged adult daughter of the deceased, brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975. The appellant originally failed to file an acknowledgment of service and evidence in accordance with CPR 8.4-8.6. She obtained relief from sanctions by consent but failed to meet the new deadline. No further application for relief was made, and she failed to give instructions to her solicitors, who applied to come off the court record. By an unappealed order, the appellant was debarred from taking part in the final hearing but was permitted to attend in accordance with CPR 8.4, and her solicitors were permitted to come off the record. The final hearing was heard remotely, where the appellant had the assistance of a care worker throughout. Despite being debarred, the judge took into consideration a six-page letter served by the appellant. The claim was successful, and an order was made that a lump sum of £138,918 be paid to the respondent out of the estate. The lump sum included a sum of £16,750 as a 25% contribution to the respondent’s liability under a conditional fee agreement. Two grounds of appeal were heard:
- (1) that the judge had erred in proceeding with the final hearing in circumstances where the appellant, who was deaf, attended the hearing conducted remotely on Skype from her care home where she was assisted by a care worker; and
- (2) that the judge had erred in law to include a contribution to the conditional fee agreement in a maintenance-based award by reference to the financial needs of the respondent.
Held:
Dismissing the appeal:
- (1) Despite being frail and deaf, the appellant had capacity to litigate and had had the benefit of competent legal representation. She chose not to co-operate with proceedings or give instructions. The failure to file an acknowledgment of service simultaneously with written evidence despite making an application for relief from sanctions meant that, pursuant to CPR 8.4-8.6, absent the permission of the court, she could not take part in the proceedings or rely on any written evidence. At the final hearing, the appellant was in no worse a position than other litigants who, unlike her, had not been debarred, but attended remotely. The appellant’s home was not at risk as at the time of trial it was on the market and there was no question of her being well enough to live anywhere other than a care home.
There was no error in allowing the trial to proceed on account that the appellant was profoundly deaf. Debarring orders should mean what they say. A litigant who is debarred as a consequence of their own failure to comply with rules cannot expect to have made available all the proper and carefully developed protections which have been put in place to ensure that a participating party can put their case effectively. There is no obligation on a court proactively to manage the attendance of a debarred party, although it is a matter for a judge whether or not to grant any request. The appellant could have instructed solicitors and applied for an adjournment or relief from sanctions but did not. She was able to write a letter which the judge could have declined to read, but did not. The respondent’s solicitors did more than could have been reasonably expected. An adjournment would have led to delay and an increase in costs which could be ill afforded from a modest estate and in practice might only have resulted in a different person making notes for the appellant (paras 7-18, 40-43).
- (2) Section 58A(6) of the Courts and Legal Services Act 1990 prohibited a costs order from requiring payment by one party of part or all of a success fee payable under a conditional fee agreement, but the question for the court was whether the success fee could form part of a needs-based award under the Inheritance (Provision for Family and Dependants) Act 1975. The claim was for such reasonable financial provision as would be reasonable in all of the circumstances to be received for maintenance (s1(2)(b)). The meaning of maintenance should not be too prescriptive, and payment of debts could form part of a maintenance award. The court has to have regard to the financial resources and financial needs of the applicant presently and in future (s3(1)(a)). ‘Financial needs’ is unqualified and unlimited and includes the payment of debts. A success fee which cannot be recovered by a costs order is capable of being a debt, the satisfaction of which is in whole or in part a financial need for which the court may exercise its discretion to make provision for in its needs-based calculation. However, it is unlikely that an award will be appropriate unless a judge is satisfied that the only way in which the claimant was able to litigate was by entering into a conditional fee agreement. It is also likely that consideration will be given to the extent of success. Further, an order will only be made to the extent necessary to make reasonable provision.
While there was the potential for undisclosed negotiations to undermine a judge’s efforts to make an appropriate award, for example, where a claimant is awarded a contribution to the success fee but ordered to pay the defendant’s costs, this was less of a risk than it might appear given that under many conditional fee agreements the claimant is obliged to accept any reasonable offer of settlement and, conversely, a success fee is frequently not payable where the claimant, on advice, rejects an offer that they fail to beat at trial. The judge was in any case alive to the issue and mitigated any potential injustice by adopting a cautious approach in ordering a 25% contribution to the success fee (paras 26, 28, 48-50, 58-59, 63-64).
JUDGMENT KING LJ: [1] This is an appeal against an order made by Cohen J on 7 May 2020 in proceedings brought by Sheila Hirachand (the Respondent) for provision from the estate of Navinchandra Hirachand (the Deceased) under the Inheritance (Provision for Family and Dependants) Act 1975 (the Inheritance Act). The Respondent is the estranged …Continue reading "Hirachand v Hirachand & anr [2021] WTLR 185"