Analysis
On 13 May 2022 the applicant made an application by form N244 seeking permission to issue a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) out of time, pursuant to s4 of that Act. A grant of probate had been made on 20 September 2021, and so the period of six months from grant expired on 20 March 2022. The evidence in support of the application exhibited a draft Part 8 claim form and witness statement, unissued.
The explanation for the delay was a technological malfunction in the applicant’s solicitors’ case management system which resulted in the limitation date either not being registered or inadvertently removed. The error was identified on 22 March 2022 and the applicant’s solicitors immediately proposed a standstill agreement, which proposal was rejected on 29 April 2022.
The respondent argued the court had no jurisdiction to make an order under s4 absent an issued claim form seeking relief, relying upon the Practice Direction issued in 1976 which required relief to be ‘expressly asked for in the originating summons’. The applicant submitted there was no such requirement, and that the court’s jurisdiction to extend time was ‘unfettered’: Begum v Ahmed [2019] at para 13.
The issues to be determined were:
- (1) Did the court have jurisdiction to give permission for a claim under the 1975 Act to be issued out of time without a claim form having been issued?
- (2) If so, should the court give such permission?
Held:
- (1) The court did have jurisdiction to give permission for a claim to be brought out of time. While the mode of application was unorthodox, s4 did not prescribe the mode of application and there was no authority requiring the application to be made by way of Part 8 claim form, and the court’s jurisdiction was broad and unfettered: Begum applied. No jurisdictional objection had been taken by the respondent in evidence, only in argument. The overriding objective of the CPR required cases to be dealt with justly and at proportionate cost, and the respondent suffered no prejudice by the application being made in this way.
- (2) Permission would be granted. The court approached applications under s4 applying the test set out in Re Salmon [1981] and in Berger v Berger [2013] at para 44. The applicant made serious applications of elder abuse and predatory marriage against the respondent which merited judicial consideration; the application was made sufficiently promptly, the solicitors having sought a standstill agreement and issuing promptly when that proposal was rejected; negotiations were attempted within the time limit; and the estate had not been distributed. Although the missing of the deadline was entirely the fault of the applicant’s solicitors which might give rise to a claim, that was not a counterbalance against other important factors: Re B [2000]. Her only remedy would be for loss of a chance which was very different to her claim under the 1975 Act: Adams v Schofield [2004] applied. The applicant owned no properties, had no savings and had only limited income; she had an arguable case under the Act.
Permission to issue a claim out of time granted.
JUDGMENT DISTRICT JUDGE CHLOË PHILLIPS: [1] The hearing on 20 September was listed to deal with an application made by Ms Colbourne, (‘the applicant’) for permission to bring her Inheritance Act claim out of time. The 1st and 2nd respondents are partners in MFG Solicitors and are the personal representatives of the Estate of the …Continue reading "Colbourne v Cooke & ors [2023] WTLR 43"