D, Re

This is an appeal against an order made on 7 January 2016 by District Judge Michael Payne, who allowed an applicant for an order authorising her to execute a statutory will to be released from the obligation to serve the papers on someone who is currently entitled to a half share of the estate on intestacy and will be disinherited if the proposed statutory will is executed.

Duaine is 30 and lives in London with his mother, Irma, who is 54.

His father, Keith, is 53, probably lives in Jamaica, and has had no contact with him for over twenty years.

Duaine has an older brother of the whole blood, Deon, who is 36, and two younger brothers of the maternal half-blood, who are 15 and 13.

He also has siblings of the paternal half-blood, but the court has no information regarding their identities and whereabouts.

He has athetoid cerebral palsy as a result of complications at the time of his birth. He sued the relevant health authority for clinical negligence and was awarded damages of £3,100,000.

On 2 October 2003 his mother was appointed as his receiver and, by a further order dated 31 January 2008, she was appointed as his deputy for property and affairs.

On 17 February 2005 I had what was known as a ‘handover meeting’ with his mother to discuss the future management of the damages award and, as was routine at such meetings, I mentioned to her the possibility of applying to the court for an order authorising her to execute a statutory will.

Duaine is currently intestate and on his death his estate would be divided equally between his mother and father.

In view of the Court of Appeal’s decision in Re B (Deceased) [2000] Ch 662, [2000] 2 WLR 929, [2000] 1 All ER 665, if Duaine were to die intestate, his mother would have a claim against his estate under the Inheritance (Provision for Family and Dependants) Act 1975, whereas his father would not.

In an assessment of capacity (COP3) completed on 29 October 2014, Duaine’s GP confirmed that Duaine lacks the capacity to make a will.

In her witness statement dated 1 July 2015 Irma said:

Irwin Mitchell Solicitors, London EC1, act for Irma, and on 3 July 2015 she applied to the court for an order authorising her to execute a statutory will, in which it was proposed that Duaine would:

appoint her and his brother Deon and his two maternal half-brothers to be his executors and trustees (his half-brothers’ appointment was conditional upon their attaining the age of 18);

give a life interest in his house in London to her, and on her death the property would pass to his three brothers in equal shares;

give 1% of his residuary estate to Cancer Research UK, and another 1% to the Guy’s and St Thomas’ Charity; and

give the remaining 98% of residue to her and his brothers in equal shares.

At the same time Irma applied for an order dispensing with the requirement to serve the documents on Duaine’s father. She said that:

On 21 August 2015 District Judge Louise Relph made an order in which she:

joined Duaine as a party to the proceedings and, subject to his consent, appointed the Official Solicitor to act as his litigation friend;

gave directions to the applicant to serve all the papers on the Official Solicitor within five working days; and

provided that “unless the Official Solicitor objects within 21 days of instruction, service upon Duaine’s father Keith is dispensed with.”

On 17 September 2015 a copy of the order and a full set of papers were served on the Official Solicitor, who objected to the application to dispense with service on Keith. The matter was then listed for a hearing.

On 7 January 2016 there was a telephone hearing before District Judge Payne, in which Irma, Grace Serwanga of Irwin Mitchell, and Victoria Newey of the Official Solicitor’s office took part.

District Judge Payne ordered that:

service upon Duaine’s father Keith could be dispensed with;

the Official Solicitor had leave to appeal; and

if the Official Solicitor wished to appeal, the parties should agree a note of the judgment he had delivered.

The Official Solicitor did, indeed, wish the court to appeal the order, and the agreed note of the judgment was as follows:

On 27 January 2016 the Official Solicitor filed an appellant’s notice (COP35) and on 13 April 2016 I listed the matter for hearing.

The hearing took place on Friday 3 June 2016 and was attended by:

David Rees of counsel and Victoria Newey of the Official Solicitor’s office; and

Barbara Rich of counsel and Grace Serwanga of Irwin Mitchell.

Part 9 of the Court of Protection Rules 2007 is headed “How to start proceedings” and is supplemented by seven practice directions.

Practice direction 9F (‘PD9F’) governs the procedure for “Applications relating to statutory wills, codicils, settlements and other dealings with P’s property.”

Paragraph 9 of PD9F says that:

any beneficiary under an existing will or codicil who is likely to be materially or adversely affected by the application;

any beneficiary under a proposed will or codicil who is likely to be materially or adversely affected by the application; and

any prospective beneficiary under P’s intestacy where P has no existing will.”

Rule 25 sets out the court’s general powers of case management and rule 26 provides that:

Rule 38, which is headed “Power of court to dispense with service”, states that:

The court may dispense with any requirement to serve a document.

An application for an order to dispense with service may be made without notice.

The Court of Protection first acquired the power to authorise the execution of a statutory will on behalf of a person who lacks testamentary capacity under section 17 of the Administration of Justice Act 1969, which came into force on 1 January 1970. This power can now be found in section 18(1)(i) of the Mental Capacity Act 2005.

Contrary to District Judge Payne’s observation that “there is, unfortunately, a shortage of jurisprudence in this area”, the question of dispensing with service has been considered judicially several times since 1970 and the decisions have been reassuringly consistent. The leading cases have been as follows.

In Re HMF [1976] Ch 33 the question before the court was whether two charities which stood to benefit by the provisions of P’s previous will, should be served with an application for a statutory will under which they were to receive nothing. Mr Justice Goulding directed that the charities should be joined as parties to the application. He said:

In re Davey [1981] WLR 164 was the outcome of a chain of events in 1979. Olive St Barbe (‘the patient’), who was 92 and had never married, was admitted to a nursing home in Kensington in June. There, she was befriended by a care assistant, Wallace Davey, 48, to whom she was married in highly suspicious circumstances on 30 October. On 18 December, when the patient was terminally ill, the Official Solicitor was appointed as her receiver and he immediately applied to the court, without giving notice to Mr Davey, for an order authorising him to execute a statutory will on her behalf. The hearing took place on 20 December before the deputy master, who made an order authorising the Assistant Official Solicitor to execute the proposed statutory will. The will was executed on 21 December and the court wrote to Mr Davey on the same day informing him of the order that had been made. The patient died on 27 December and Mr Davey appealed the order. Dismissing the appeal, Mr Justice Fox said as follows:

In re B (Court of Protection: Notice of Proceedings) [1987] 1 WLR 552 concerned a power of appointment exercisable by B under the terms of her husband’s will in favour of his nephews. B’s receiver applied to the court for permission not to notify the nephews. The receiver’s grounds for his application were that, if the nephews were notified, a bitter and intractable family dispute would ensue. Mr Justice Millett, as he then was, refused the application, and at pages 556 and 557 of his judgment, he explained the reasons why:

These three cases were decided under the Mental Health Acts 1959 and 1983. Although there was no significant change in the rules regarding the joinder of parties, notification and dispensing with service or notice, the first case relating to these matters to be decided following the implementation of the Mental Capacity Act 2005 was Re AB [2014] COPLR 381, in which District Judge Elizabeth Batten considered a situation superficially similar to Duaine’s.

AB was a young adult, who had been awarded damages for personal injury. Her mother, CD, applied for authority to execute a statutory will, the effect of which would be to remove the entitlement of AB’s absent father, PQ, to half of her estate on intestacy if she predeceased him. CD also applied for an order permitting her to dispense with service of the application on PQ and his children. She filed a witness statement recording various difficulties in her relationship with PQ, including allegations of domestic violence, and his cessation of contact with AB. AB had expressed the wish not to have any contact with her father and that he should not benefit from her estate. Refusing the application to dispense with service, District Judge Batten held as follows:

The court’s decision whether to dispense with service is a decision made in exercising the case management powers conferred upon it by the Court of Protection Rules 2007 and is not “an act done, or decision made under this Act for or on behalf of a person who lacks capacity” for the purposes of section 1(5) of the Mental Capacity Act 2005. Accordingly, it does not require an investigation as to what is in P’s ‘best interests’.

In general, permission to dispense with service or notification of an application altogether should only be given in exceptional circumstances, where there are compelling reasons for doing so. Otherwise the interests of justice will not be served and the court will not be seen to be acting fairly towards all parties. Relevant considerations may include:

the respondent’s conduct, particularly where there is independent and reliable corroborative evidence of his past behaviour;

the value of the financial benefit to the respondent both in absolute and relative terms; and

whether the cost to P’s estate or the parties, or the delay caused in concluding the application is disproportionate relative to the value to the respondent of the benefit he will lose by the proposed final order.

On the facts of the case, the factors in favour of notifying PQ outweighed those against notifying him. The allegations against him were significant and serious, but the court had not heard his side of the story, which may shine a different light upon the events described. The circumstances of this case were not exceptional, nor were there compelling reasons to direct that service on PQ and his children should be dispensed with.

In his skeleton argument on behalf of the Official Solicitor, David Rees submitted that District Judge Payne was wrong in principle to dispense with service on Keith for the following reasons:

Although the judgment purports to recognise that Duaine’s best interests are not the determinative factor, the judge’s reasoning in fact focuses on Duaine’s best interests to the exclusion of other factors and does not consider or address the wider set of factors. Specifically, there is no mention of the overriding objective, the need to achieve procedural fairness, the risks of proceeding on untested evidence, or the potential; consequences to Keith of dispensing with service. Nor was there mention of the fact that Duaine’s best interests might be said to include not disinheriting his intestacy beneficiaries without giving them an adequate opportunity to present their case to the court.

There was no evidence before the judge on what searches had in fact been carried out to trace Keith. It appears that Deon had been in contact with his father until two years ago, and Keith is known to have other children and relatives living. In the age of Facebook, even modest internet searches might assist in finding Keith or a relative of his who remains in contact with him.

The judge was wrong to balance to cost to Duaine of seeking to trace Keith against his views of the merits of the case.

Any assessment of the merits of the case was based on evidence which was untested, and where the person who might be in a position to challenge the account given by Irma of past events had not been told of the application. (The Official Solicitor is unlikely, in any case, to be in a position to go behind the applicant’s account of events which have happened years earlier. That is not to say that an alternative version of events might not be forthcoming. It is not difficult to envisage a case where an apparently absent father adduced evidence showing that he had been deliberately excluded from Duaine’s life). Giving weight to the prospects of success of the substantive application, let alone treating them (as the District Judge appeared to do) as a crucial factor in the exercise of the court’s discretion allows an applicant to pull up the application to dispense with service by its own bootstraps. It is accepted that, in submissions before the judge the Official Solicitor indicated that it was open to the judge to take a view on the merits of the substantive application, although the decision was ultimately a procedural one, rather than a best interests one.

The cost of searching for Keith was wrongly given undue prominence.

First, any statutory will is likely to involve a financial cost to Duaine; under rule 156 the starting position is that the costs of all parties in a statutory will application fall to be paid out of Duaine’s estate. This is not a reason to allow (or dismiss) an application in limine.

Second, the judge’s conclusion that in an estate of circa £3million expending a ‘four figure sum’ on searches would be disproportionate is unsustainable.

In any event, any concern about the costs of tracing Keith could have been addressed by a method short of dispensing with service altogether. If Keith is suspected of being in Jamaica, then more limited requests for information (say newspaper advertisements or a radio announcement on that island) might yield results. The Official Solicitor suggested that the judge should impose a cap on the amount to be spent searching for Keith. Alternatively, it would have been open to the court to direct substituted service (for example by sending letters to last known addresses of relatives, or placing newspaper advertisements). The learned judge failed to consider any of these.

Given the evidence before the judge, that the ‘hassle’ said to have been experienced by Irma after Duaine’s damages award became public did not involve visits, letters or calls from Keith’s relatives, the judge was wrong to give weight to the factor that serving Keith would cause anxiety to Irma and that this would not be in Duaine’s best interests. Virtually every application for a statutory will disinheriting an absent parent will give rise to some anxiety on behalf of the applicant. A real and credible risk of physical violence might in a particular case justify dispensing with service (although even there the usual approach would be to redact documents to remove addresses. This was the approach adopted by District Judge Batten in Re AB). However, a risk of anxiety arising (because of the past behaviour of third parties and not the person in respect t of whom the exemption is sought) should not override the other factors which would usually require that individual to be served.

In the circumstances the court is asked to set aside the order of District Judge Payne and direct the applicant to take steps to locate and serve Keith. The court is further asked to stay the substantive application pending the resolution of this appeal.

Conflicts of interest are ubiquitous in any mental capacity jurisdiction and one of the court’s functions is to manage them by providing appropriate and effective safeguards to prevent abuse.

They are particularly prevalent in statutory will applications and the court manages them by joining the person who lacks testamentary capacity (‘P’) as a party to the proceedings and appointing a litigation friend to act on his or her behalf.

Rule 140 of the Court of Protection Rules 2007 provides that:

can fairly and competently conduct proceedings on behalf of that person, and

has no interests adverse to those of that person.”

Whereas in most litigation, P’s deputy for property and affairs is the obvious person to act as litigation friend, in statutory will proceedings the deputy is often conflicted because of a personal agenda or interest in the outcome, and the court needs to look elsewhere for a suitable candidate.

In statutory will proceedings, even when there is a professional deputy, the court’s usual practice is to appoint the Official Solicitor to act as litigation friend because:

he can conduct the proceedings fairly and competently;

he has no interests adverse to P’s interests;

he has considerable experience and expertise in relation to the discharge of his role as litigation friend in cases of this kind; and

as the Official Solicitor to the Senior Courts, he has a broader remit as advocate to those courts, to provide them with advice and assistance, including guidance on the impact of any decision a judge may make.

It comes as no surprise, therefore, that in the context of this broader role, David Rees, as counsel for the Official Solicitor, invited the court to approve or amend the following guidance:

A decision by the court to dispense with the service of an application on a person who would otherwise be entitled to it is not “an act done, or decision made, under [the Mental Capacity Act 2005] for or on behalf of P” within the meaning of section 1(5). It is therefore not a decision which is to be determined only by reference to an assessment of P’s best interests.

The court’s decisions on procedural matters should be considered with regard to the obligation to give effect to the overriding objective set out at rule 3 of the Court of Protection Rules 2007. This makes clear that dealing with a case justly includes:

ensuring that it is dealt with expeditiously and fairly

ensuring that P’s interests and position are properly considered. Although P’s best interest may be relevant to the court’s decision to dispense with service, unlike a decision which is being taken for or on behalf of P, they are not determinative;

dealing with the case in ways that are proportionate to the nature, importance and complexity of the issues;

ensuring that the parties are on an equal footing;

saving expense; and

allotting it an appropriate share of the court’s resources, while taking account of the need to allot resources to other cases.

The court should recognise that a decision to dispense with service on an individual otherwise entitled to it may engage that individual’s rights under the European Convention on Human Rights, especially articles 6 and 8. In any event, P’s own Convention rights are certainly engaged. More broadly, even if Convention rights are not engaged, issues of procedural fairness arise.

A decision to dispense with service on an affected party will mean that the court may have to decide the substantive application without all the relevant material before it.

Any decision to dispense with service on an individual will be taken by the court on the basis of untested evidence. The apparent merits of the substantive application should not be used to justify dispensing with service.

Fears about the consequences to P or the applicant of service on the individual in question can in many ways be ameliorated by the use of the court’s powers under rule 19 to redact relevant details, such as addresses.

The consequences of the application succeeding to the individual who is not to be served should also be considered.

Before a decision is taken to dispense with service because of practical difficulties, consideration should be given to the possibility of effecting service by means of an alternative route under rule 34.

Matters of procedural fairness should be given a high regard, and it is submitted that cases where it is appropriate to dispense with service on an individual who is directly and adversely affected by an application are likely to be exceptional.

Different factors may apply in cases where the application is to dispense with service on P or where there is genuine urgency and there is a need to balance the prejudice of proceeding in the absence of an affected party against the prejudice to P or another party of not proceeding at all.”

Mr Rees’s first submission – that a decision by the court to dispense with the service of an application on a person who would otherwise be entitled to it is purely a decision on procedure and does not require an assessment of P’s best interests under sections 1(5) and 4 of the Mental Capacity Act 2005 – stems from the conclusion reached by Mr Justice Hedley in Re MN (Recognition and Enforcement of Foreign Protective Measures) [2010] EWHC 1926 (Fam), [2010] COPLR Con Vol 893. As the title of that case suggests, it involved the recognition and enforcement under Schedule 3 of the Act of an order made by a foreign court. At paragraph 31 of his judgment he said that:

Hedley J’s conclusion was approved by the President, Sir James Munby, who, in Re PO [2013] EWHC 3932, [2014] COPLR 62, at paragraphs 33 and 34, applied it in respect of the court’s discretion under rule 87 of the Court of Protection Rules 2007, which relates to the procedure for disputing the court’s jurisdiction.

In her own skeleton argument, Miss Rich, as counsel for the applicant, described this guidance as “a succinct analysis of the framework of principle in Re AB”, from which her client did not dissent.

I am grateful to Mr Rees for setting out this guidance and to Miss Rich for endorsing it. I approve the guidance and shall now apply it.

This is by no means an exceptional case and there is no compelling reason why service on Keith should be dispensed with.

It is definitely not an urgent case. There is no emergency or need to act with great speed that would justify the court departing from its usual practice of joining as a respondent someone who is materially and adversely affected by the application. Duaine is 30 and has a normal life expectancy. He could live for another 45 years or more. At the handover meeting in 2005 I told Irma that the court can authorise the execution of a statutory will on behalf of someone who lacks testamentary capacity. It has taken her ten years to get round to making this application.

I was unimpressed with the efforts to locate Keith and, frankly, doubt whether any attempt was made to find him at all. I suspect that someone assumed it was a foregone conclusion that the court would dispense with service and, accordingly, there was no need to make any preliminary enquiries about his current address.

At the hearing, I asked about Duaine’s paternal grandmother, who, according to Irma, was the only relative on Keith’s side of the family who had bought a present for Duaine when he was a baby. Nobody knew whether she was alive or not. If she is still alive, she may be a suitable person to facilitate substituted service. The papers could be served upon her to serve upon Keith. I agree with Mr Rees that in the age of social media, a few online enquiries may assist in finding Keith or someone who is still in contact with him.

I also agree with Mr Rees that District Judge Payne gave undue prominence to the cost of searching for Keith, though I accept that different judges may have different ideas on what is reasonable in the circumstances. Just as it was said that equity varied according to the length of each Lord Chancellor’s foot, so proportionality defies precision and predictability. In my view, Judge Payne’s concern over the expenditure of a four figure sum was unjustified, given the enormousness of the principle at stake and the extent of Keith’s disinheritance, if the court were to approve the statutory will as drafted.

Unlike the facts in Re AB, there is no suggestion that Keith had ever been physically violent towards Irma or Duaine, and the hassle that Irma claims to have experienced, when Duaine’s damages award was reported in the press, was from members of his family, rather than Keith himself. If, as we are led to understand, this harassment involved neither letters, nor visits nor calls, but resulted in considerable worry, one wonders what precisely it did entail and why it should have caused her so much anxiety.

The fact that members of Keith’s family became aware of the damages awarded to Duaine, when the details were published in the press, suggests that they were living locally at that time (and may even still be living locally) and that it is likely that Keith himself is aware of the size of the award. He may even entertain a remote hope of inheriting part of it someday. If so, there is all the more reason for serving the papers on him.

At paragraph 82 of her judgment in Re AB, District Judge Batten remarked that:

I agree. There are more applications of this nature than one would think and they are usually dismissed. Often they involve the victims of clinical negligence – particularly in older cases, where a large lump sum was awarded by way of damages, rather than in more recent cases, where the practice has been to award a smaller amount of capital and periodical payments that die with the claimant.

More often than not, these applications to dispense with service are made because it would be more convenient for the applicant to avoid any potential confrontation and less painful than the re-opening of old wounds.

Reference was made to the European Convention on Human Rights 1950 (‘ECHR’), Article 6 (the right to a fair trial), but the principle engaged in this application, ‘hear the other side’ (audi alteram partem), is a principle of natural justice, which deters a judge from making a decision that impacts adversely on the rights of an individual without giving him the opportunity to be heard. It is infinitely older and of wider territorial application than the ECHR.

As Mr Justice Millett suggested in Re B (Court of Protection: Notice of Proceedings), from time to time, but only very rarely, there will be exceptional cases when it may be appropriate to dispense with service on someone who is materially and adversely affected by a substantive application.

Generally, however, by agreeing not to hear the other side, because it would be more convenient or less discomforting for the applicant, or cheaper for the person ultimately paying the bill, the court would be failing in its duty to manage conflicts of interest and to provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law.

Keith may even consent to the application, though if he objects, that is a matter for another judge to consider at another time. The perceived merits of the application and the apparent weakness of any objection to it should not detract from his right to be told and, if necessary, his right to be heard.

Accordingly, I shall allow this appeal and set aside District Judge Payne’s order, and direct Irma to take steps to locate Keith. I am not going to impose any limit on the amount to be spent on such enquiries because I reckon that, once a genuine attempt is made to trace him, he won’t be too difficult to find.

When Irma has located him, issues such as editing information in court documents (rule 19) and substituted service (rule 34) can be considered by way of an application notice.

At the end of the hearing, Mr Rees proposed that the Official Solicitor’s costs be assessed on the standard basis and paid from Duaine’s estate, and that there should be no order in respect of Irma’s costs.

As far as Irma’s costs are concerned, this proposal involves a dramatic departure from the general rule in property and affairs cases (rule 156), which says that:

Rule 159 sets out the circumstances in which the court may depart from the general rule. They are as follows:

the conduct of the parties;

whether a party has succeeded on part of his case, even if he has not been wholly successful; and

the role of any public body in the proceedings.

The conduct of the parties includes:

conduct before, as well as during, the proceedings;

whether it was reasonable for a party to raise, pursue or contest a particular issue;

the manner in which a party has made or responded to an application or a particular issue;

whether a party who has succeeded in his application or response to an application, in whole or in part, exaggerated any matter contained in his application or response; and

any failure by a party to comply with a rule, practice direction or court order.”

One aspect of Irma’s conduct that could fall within rule 159(2), and thereby justify a departure from the general rule, is that it was unreasonable for her to have applied to dispense with service on Keith in the first place.

Maybe it was unreasonable. Nevertheless, she succeeded on that application, not just once, but twice. District Judge Relph’s order of 21 August 2015 stated that “unless the Official Solicitor objects within 21 days of instruction, service upon Duaine’s father Keith is dispensed with.” The Official Solicitor objected and there was a telephone hearing on 7 January 2016 at which Irma was again successful and District Judge Payne confirmed that service on Keith could be dispensed with.

In my judgment, it would be unfair to order Irma to pay her own costs in respect of the application because:

two judges considered that her application to dispense with service was appropriate in the circumstances;

having succeeded thus far, she had no option other than to respond to the Official Solicitor’s appeal;

she received no warning whatsoever that she may have to pay her own costs; and

though I have no idea of her financial circumstances, I suspect that, like many parents who care full-time for their profoundly disabled child, she is dependent on Duaine’s damages award, and has relatively little in the way of personal savings.

I shall order that Irma’s costs be assessed on the standard basis and paid from Duaine’s estate.

However, Mr Rees’s bullish proposal that Irma should pay her own costs may be a portent that in future the Official Solicitor will seek a costs order against applicants who, in unexceptional circumstances and for no compelling reason, apply to dispense with service on someone who is materially and adversely affected by an application for the execution of a statutory will.