Jones v Longley & Ors

This is my judgment on the Claimant’s application by notice dated 9 November 2015 to strike out the counterclaim of the First Defendant dated 29 September 2015 under CPR rule 3.4(2)(a) and (b) for non-compliance with my Order dated 30 July 2015. It is a further instalment in long-running litigation between the beneficiaries of a deceased’s estate (including one of the original co-executors) and the other co-executor, a solicitor, since removed from office. The Claimant’s Notice continues

The application is supported by three witness statements of Lisa Taylor, a solicitor of Mills & Reeve LLP, dated 9 November 2015, 14 January 2016 and 15 January 2016 respectively. There is also a short witness statement of Emily Lake of Cornfield Law LLP, also dated 9 November 2015. This explains that her firm remains the solicitors on the record in this litigation, and still has conduct so far as concerns the claim under s 50 of the Administration of Justice Act 1985. However Mills & Reeve LLP has been instructed to act for the Claimant in respect of the counterclaim.

The application is opposed by a witness statement of the First Defendant (his third in these proceedings) dated 7 December 2016. The First Defendant acts in person. He has also written to the Court by letter dated 15 January 2016, which is also relevant to this matter, and produced a further witness statement, dated 22 February 2016, in relation to the Claimant’s application by notice dated 5 February 2016 to which I refer below. I record here that the First Defendant was the sole defendant in these proceedings until the order of Deputy Master Mark of 3 February 2015, by which the Second and Third Defendants (the First Defendant’s siblings, and each entitled with him to an equal share under the will) were joined as parties. However, for the sake of clarity, I will refer to him throughout as the First Defendant.

The hearing of the application began on 20 January 2016, when Mr Michael Bowmer of counsel appeared for the Claimant, and the First Defendant appeared in person. As I understood it, although the representation slip did not say so expressly, the First Defendant was appearing on his own behalf and also on behalf of the other Defendants (see further para 19 below). There was not enough time to complete submissions on that day, but because of an unexpected gap in my diary it was possible for us to continue on 21 January 2016. Even so, there were some loose ends, and I invited the parties to let me have written submissions after the hearing, which I received on 28 January 2016 from the First Defendant and on 4 February 2016 from the Claimant. I am sorry about the delay in preparing this judgment since then.

Before I move on to more substantive matters, I must deal with a procedural issue. At the conclusion of the hearing on 21 January 2016 I directed that any written submissions be filed and served in accordance with a timetable. The Claimant was to file and serve his submissions by 4 pm on 4 February 2016. A hard copy of those submissions was filed with the court before that time limit. Soft copies were emailed to three addresses for the three Defendants. Unfortunately they were despatched by a secretary employed by the Claimant’s solicitors at 4.03pm on 4 February 2016. Even more unfortunately, the address typed for the First Defendant was incorrect, in omitting one letter (the other addresses were correct). The next morning (5 February 2016) the secretary saw an error message, returning the undelivered email, and at 8.39 am sent a further soft copy to the First Defendant’s correct email address.

The same day the Claimant issued an application notice seeking relief from sanctions, supported by the fourth witness statement of Lisa Taylor, dated 5 February 2016. The First Defendant objected in a written statement of 22 February 2016 (to which I refer further below). The Claimant adduced a further witness statement from Lisa Taylor (her fifth), dated 23 February 2016. The papers were ultimately placed before a deputy master, who on 1 April 2016 made an order granting relief.

For myself, I do not think that any application for relief was needed, since there was no order that the Claimant file a submission, and if he did not want to there would be no breach of my order. Moreover there was no sanction which would bite automatically in case of failure to comply, although if the submissions were late the Court might have decided not to take them into account. In the language of CPR rule 3.8(3), my order neither required the Claimant to make a written submission, nor specified a sanction for failure to do so. Nevertheless, the matter was dealt with in that formal way.

The context in which this application is made is as follows. Charles Henry Longley (“the deceased”) died on 9 May 2010, and probate of his will dated 24 November 1994 was granted to the Claimant and the First Defendant as co-executors on 4 May 2012. The relationship between the two co-executors broke down, and the administration of the estate stopped. On 17 January 2014 the Claimant issued this claim by Claim Form under Part 8 of the CPR, for an order under the Administration of Justice Act 1985, section 50, removing the First Defendant as co-executor.

After a number of hearings before different masters, the matter came before me for the first time in May 2015. At a further hearing before me, on 30 July 2015, I made an order on the Claimant’s claim, for which I gave reasons at the time, removing the Claimant as co-executor. However, those reasons involved no criticism of the Claimant. The result was to leave the First Defendant as sole executor and personal representative of the estate of the deceased (“the Estate”). I dealt with the costs of the claim by way of written submissions, leading to a written judgment on costs of 20 November 2015, with the neutral citation number [2015] EWHC 3362 (Ch).

However, long before the order of 30 July 2015, at a directions hearing on 8 April 2014, Deputy Master Bartlett gave the First Defendant (then simply the defendant, of course) “permission if so advised to file and serve a counterclaim settling out what remedies he seeks and brief reasons verified by a statement of truth by 22 April 2014”. Permission was needed because this was a Part 8 claim: CPR r 8.7.

On 21 April 2014 the First Defendant filed in court two documents, one described as a counterclaim (but also as “DCL 5”) and supported by a statement of truth, and the other as “DCL 6”. The former was some 17 pages long (mostly single-spaced), and the latter some 80 pages. Both documents refer to other documents prepared by the First Defendant and filed in court at an earlier stage in the proceedings. Indeed, the former document ends with these words:

The First Defendant is not a lawyer. In both his original witness statement and in his counterclaim the First Defendant described himself in these terms:

Unfortunately, the style of the witness statement and of the counterclaim in the original version is both pedantic and prolix, meandering and lacking in particularity in important places. There are no headings or paragraph numbers, and, although there are separate paragraphs, they are often very long. The counterclaim thus pleaded did not comply with the procedural rules, practice directions and other guidance (which so far as relevant are set out in paras 15-18 below). As a result it was not possible to get a clear or precise hold of the substance of the claims which the First Defendant was seeking to make against the Claimant. Coupled with the fact that the First Defendant is not trained to be able to sift out the legally relevant from the irrelevant, this in turn made it difficult for the Claimant to plead to the counterclaim. Unsurprisingly the Claimant did not do so before the hearing of 30 July 2015 to which I have already referred.

At the conclusion of that hearing, and at the request of the Claimant, I directed that

The relevant rules about pleading claims (which apply also to counterclaims) are contained in CPR r 16.4, PD 16 para 8.2, and the Chancery Guide, in what were then Paras 2.8, 2.10 and Appendix 2 (in the 2013 edition), and are now paras 10.1, and 10.4 – 10.17 (in the 2016 edition).

CPR r 16.4 provides:

So far as material, PD 16 para 8.2 provides:

The Chancery Guide, in what in the 2013 edition were Paras 2.8, 2.10 and Appendix 2, provides:

On 29 September 2015, the First Defendant filed and served a fresh statement of case in purported compliance with my direction of 31 July 2015. In the first paragraph on page 2 it stated that it was “filed and served on behalf of the Beneficiaries (the three Defendants)”. (I should say that there are statements to similar effect in other documents filed by the First Defendant.) This statement of case was some 23 pages long, again single-spaced, and again without individual paragraph numbers. It comprised an “Introduction to Statement of Case” (1.5 pages), a “Statement of Case” (8.5 pages) and an “Elaborative context for CC” (12.5 pages). There were however some cross-headings and numbering of sections of the document. There were also a further 32 pages of further documents exhibited (without any coversheet, or index) to this pleading.

Looking simply at the first part (1.5 pages) of the new document, the first paragraph is simply scene-setting. The second and third set out in summary form the nature of (apparently) three separate causes of action: one against the Claimant and his former law firm Stuckey Carr & Co for breach of duty alleged to be owed to the deceased, a second against them for breach of duty alleged to be owed to the Defendants as beneficiaries of the estate in its administration, and a third against them for alleged negligence in their behaviour including the commencement of the proceedings for the removal of the First Defendant as executor. The fourth paragraph gives or refers to some particulars of the breaches of duty alleged. The fifth paragraph addresses preliminary questions of quantification of loss, and the final paragraph deals with issues concerning the pre-action protocol for professional negligence.

It is not possible to incorporate the whole document into this judgment. I will however give some extracts by way of example. The following is from this first part of the document, comprising the fourth paragraph referred to above:

The second part of the document (8.5 pages), headed “Statement of Case” breaks down the claims very broadly into (i) alleged failure to administer the estate properly (including issues related to the deceased’s house and collect a debt alleged to be due), and in any event within the “executor’s year”, and (ii) issues related to financial and legal advice given to the deceased during his lifetime. However, although there are cross-headings provided, many specific allegations are made, and in some cases detailed particulars are given, these claims are not addressed in a systematic way. The claims are not grouped together either by time (so that the claims in respect of alleged breaches of duty during the deceased’s lifetime and those arising in the course of administration are mixed together) or by defendant (so that the claims against Stuckey Carr & Co appear at various different points).

By way of example of this part of the document, I set out two paragraphs. The first is from a section dealing with “Probate delays”:

The second extracted paragraph is from a section headed “Claim to have DCL removed as executor, claim for loss of income”:

The third part of the document (12.5 pages), headed “DCL Exhibit CC1, Elaborative context for counterclaim”, gives further details in respect of some of the claims, but is repetitive both of the earlier documents and also internally. Although there are some cross-headings, and numbering of sections, paragraphs are simply bullet-pointed, and become very long (the longest is nearly two pages). Again, the claims dealt with are not addressed in any systematic way. In no part of the document, however, is any coherent case on causation of loss advanced. Indeed, whilst a number of “complaints” can be seen, causation and loss are covered thinly, if at all.

By way of example of this part, I set out a paragraph from the section headed “Devastavit/Waste of Estate Assets and causing significant delays causing extra estate costs”:

Quite apart from the substance of what is put forward, a number of common features of the pleading style can be seen in these extracted paragraphs. Instead of short sentences, each making a single point, there are very long sentences, making several points all at once. There are generalised allegations (some of the utmost gravity) without particulars. There is a general pleading of “evidence” to support the generalised allegations. There is much material that is simply irrelevant. And there is a general lack of coherence. In the last extracted paragraph, there is no explanation of how a failure in respect of the title deeds to the deceased’s property could cause a loss of rental income in respect of the First Defendant’s own pre-existing property elsewhere.

The Claimant’s Application Notice of 9 November was a response to this revised statement of case. Lisa Taylor, in her witness statement of 10 November 2015, complains that the new counterclaim does not comply with the relevant rules and nor with my order. I have set out the rules and the relevant part of my order above. Lisa Taylor says:

The application is made under CPR rule 3.4. So far as material, this provides as follows:

I remind myself that in exercising this (and any other) power the Court must seek to give effect to the overriding objective: CPR rule 1.2(1). The overriding objective is set out in CPR rule 1.1, which reads:

In considering this matter, I have had the benefit, not only of the oral submissions made to me at the hearings on 20 and 21 January 2016, but also of the evidence filed by both sides in this application, the written submissions in the Claimant’s skeleton argument before that hearing and the further written submissions after it, dated 28 January (from the First Defendant) and 4 February 2016 (from the Claimant). I have taken all of these into account.

Mr Bowmer, in his skeleton argument, says that in summary there are three “critical problems” with the counterclaim. First, it is too dense and prolix to enable a point by point defence to be pleaded, as the CPR require. Second, it has mixed together claims in different capacities and against different parties, including (i) claims by First Defendant as executor against the Claimant’s former law firm, Stuckey Carr & Co (which is not a party) which are said to have accrued to the deceased whilst alive; (ii) claims by First Defendant as beneficiary against Claimant personally as former executor; and (c) claims by First Defendant as executor against the Claimant’s law firm in respect of their retainer by the Claimant and First Defendant as executors of the will of the deceased. Third, there are no proper particulars of the claims, and no coherent case on causation.

In my judgment there is force in each of these three criticisms. The first is obviously a matter of impression. However, having read the second version of the counterclaim, I have to say that , although there are some points that would be clear enough to respond to, there are many more for which it would be impossible. Overall this could properly be described as a nightmare pleading to deal with. The rules of procedure must equally protect the person responding to a claim as much as they enable the claimant to put forward his or her claim.

Second, it is quite clear that claims of different kinds have been mixed together, contributing to the degree of difficulty of properly responding. Although in his witness statement of 22 February 2016, paragraph 5, the First Defendant says his case “has consistently been the simple one that the Claimant … caused delays to estate administration, and that these delays produced losses to the estate…” the counterclaim is beyond any doubt not so confined, even if it is very difficult to see exactly how far it does go. Third, I agree that the provision of particulars is hit and miss. Some topics are clearer than others. But there is certainly no coherent case on causation, for example.

I also accept that, as Mr Bowmer also says, the statement of case even in its revised form is still formally defective as well. It does not properly comply with CPR Part 16 or the Chancery Guide. By way of example only, it is not a concise statement of the facts on which the claimant relies, it does not number the paragraphs consecutively, each paragraph does not contain only one allegation, and it does not throughout deal with the case on a point by point basis. All of these things are necessary in order to facilitate a point by point pleading of his defence to the counterclaim by the Claimant. Only in this way will the parties and the Court be able to see what is truly in issue between the parties. This matters because efficient case management and trial depend on accurately identifying that. Accordingly, to that extent at least the counterclaim does not comply with the order of 30 July 2015.

In his post-hearing written submissions, Mr Bowmer repeats some of this. He argues that, in addition, the counterclaim does not “properly set out all the necessary elements of a claim in terms of duty, breach, causation and loss,” and as a result there are “no reasonable grounds for bringing the claim and CPR 3.4(2)(a) is applicable”. I have already said that there is some force in these criticisms (above, paras 33-35). But I doubt that rule 3.4(2)(a) is appropriate for dealing with cases where the real vice is that the statement of case is impossible to plead to rather than that it does not contain the elements of a claim. In any event, as will be seen, I need not dwell on that sub-rule.

There are other problems, too. Counterclaims are governed by the procedural rules in the CPR Part 20, and also by the Senior Courts Act 1981, s 49(2)(a). I will come back to the CPR. But the court’s jurisdiction to deal with counterclaims at all is conferred by the 1981 Act. Section 49(2)(a) (so far as material) provides

The significance of the words “the same effect as hitherto” is to refer back to the equivalent provision in the Supreme Court of Judicature (Consolidation) Act 1925, s 39(1)(b) (and before that the equivalent provision in the Judicature Act 1873, s 24(3)). The 1925 Act, by s 39(1)(b), (so far as material) provided that

So s 49(2)(a) of the 1981 Act gives the court jurisdiction to grant relief to a counterclaiming defendant against a person other than the original claimant only to the extent that it did “hitherto”, that is, under the earlier legislation. But that legislation made clear that, in the case of a counterclaim against a third party, the relief sought had to be “relating to or connected with the original subject of” the claim. If it was not, the counterclaim would be struck out as against the third party: see eg SF Edge Ltd v Weigel (1907) 97 LT 447, CA.

CPR rule 20.9(2) supports this conclusion in relation to the current law too. That rule provides that when the court is considering whether to permit an “additional claim” (defined by rule 20.2(1)(a) to include a counterclaim) to be made, the court may have regard to

The drafting of rule 20.9(2)(c), in restricting the question to be raised in the counterclaim to one “connected with the subject matter of the proceedings” when the court is considering a counterclaim against a third party, shows that, where the question is not connected with the subject matter of the proceedings, the court does not need to take it into account, because in such a case the court cannot allow the counterclaim to be made anyway.

In the present case the counterclaim made by the First Defendant raises claims against both the Claimant and the partners of his former law firm, Stuckey Carr & Co. Certainly, to the extent that the counterclaim against the law firm relates to matters before the death of the deceased, ie in relation to failing to give appropriate advice to him about his investments or the title to his house, in my judgment it does not relate to nor is connected with the claim by the Claimant to remove the First Defendant as an executor of the deceased’s estate.

Even in relation to the allegations of maladministration of the estate there must be a question as to whether they sufficiently relate to or are connected with that claim: cf SF Edge Ltd v Weigel, cited above, where a counterclaim for libel alleged against the claimant and a third party was held not sufficiently connected to the original claim, also for libel, both libels arising out of a long-running dispute between the claimant and the defendant, who were rival motor-car dealers.

However, I do not need to resolve that question at this stage, because, as Mr Bowmer points out, no permission has been sought or obtained by the First Defendant to bring claims as part of his counterclaim against the Claimant’s former law firm. CPR rule 20.5 provides that a defendant who wishes to counterclaim against a person other than the claimant must first obtain permission. As I have already said, Deputy Master Bartlett by order on 8 April 2014 gave permission to First Defendant to file and serve a counterclaim, but that was because the original claim was brought under Part 8, and the court’s permission is always needed to make a counterclaim, even against the claimant alone, in those circumstances: CPR rule 8.7. Permission under rule 8.7 is not permission under rule 20.5. Those two rules serve quite different purposes.

So far as the First Defendant’s counterclaim is against the Claimant, it might be thought to be on safer ground. But there is an issue here as well. The Claimant made his claim against the First Defendant in his capacity as executor of the will of the deceased. Not being a beneficiary of the estate, he would not otherwise have had standing to bring the claim at all. Yet some of the claims made in the counterclaim against the Claimant are claims against the Claimant in his capacity as a solicitor who advised the deceased during his lifetime. Mr Bowmer accordingly also argues that First Defendant needs permission to make a counterclaim against the Claimant in a different capacity from that in which the Claimant sues the First Defendant.

I was not referred to any decisions or commentary on the point, and I am not aware of any. It is of course well established that a person who has more than one capacity, such as trustee and beneficiary, should be joined as a party to litigation once only, and on a single side: see Neale v Turton (1827) 4 Bing 149; Hardie & Lane Ltd v Chiltern [1928] 1 KB 663; Re Phillips [1931] WN 271. But that rule tells us nothing about the construction of the phrase “person other than the claimant” in CPR rule 20.5. If the claimant has two capacities, one personal and one representative, it may be regarded as accidental that he or she has the representative capacity. Someone else might easily have taken out the grant.

However, rule 20.9(2)(c) is relevant here also. It similarly restricts the question to be raised in the counterclaim to one “connected with the subject matter of the proceedings” when the court is considering a counterclaim against an existing party but in a different capacity. In my judgment this sub-rule is not explicable except on the basis that a counterclaim against an existing party in a different capacity is to be treated similarly to the case of a counterclaim against a quite separate third party. Accordingly the First Defendant needs permission to make a counterclaim against the Claimant in respect of the claims alleged against him arising out of conduct before the death of the deceased.

As already mentioned, the First Defendant has made a number of submissions which are relevant to this application. In para 4 of his 15-page witness statement of 7 December 2015 (which referred to “the Defendants’ Counterclaim summary”), he expressly asked the Court to award what he called “summary judgement” against the Claimant on the grounds that the latter had not put in a defence to the counterclaim. But the Claimant has made an application by notice to strike out the counterclaim on the footing that (inter alia) it is not possible to plead to it. Obviously, until that issue is resolved I cannot give judgment in default of defence to counterclaim. As for “summary judgment”, that is only appropriate in a case where a party has put in a defence, and the court considers that, notwithstanding what is argued, there is no need for a trial. The remainder of the statement is stated to be an attempt “to further explicate the core of the Counterclaim”, and repeats much of the counterclaim in different language. What it does not do is to answer the criticisms of the new counterclaim as filed.

In his letter to the Court of 15 January 2016 (clearly written on behalf of “the Defendants”) the First Defendant dealt with a few points about the bundle for the hearing of the Claimant’s application, repeated some of the points already made in the statement of 7 December 2015, and finally asked the Court to

At the hearing itself, the First Defendant covered a number of matters in oral submissions. These included the problems he had encountered in relation to the filing of bundles, the coherence (as he saw it) of the counterclaim as redrafted, the order of Deputy Master Mark of February 2015 (which he considered was in the Defendants’ favour, rather than deciding matters against them), his surprise at the Claimant’s lawyers’ inability to understand the counterclaim, the two main issues of the Hong Kong bank claim and the title deeds to the deceased’s house, problems encountered in obtaining a sealed copy of the order of July 2015 for the purposes of extracting an amended grant to the Estate, and his understanding that, if the Claimant were removed from office he would be exonerated of all liability. He also accepted that he had not put the professional negligence claim very well in the original counterclaim, but thought it was very clear in the revised version, and that he had looked at the Chancery Guide for that purpose. He also accepted that he had not enumerated the losses alleged to have been caused, because they were “multiple”.

In his written submission dated 28 January 2016 (described as “DEFENDANTS’ 28^TH JANUARY 2016 SUBMISSION…”, and clearly written on behalf of the Defendants), the First Defendant complains that the Claimant has referred to and relied on aspects of the costs judgment last November, though that related only to the claim and not at all to the counterclaim. I agree that the costs judgment was one in relation only to the claim. I also agree that the Claimant has referred to it in the context of the present application (see eg the second witness statement of Lisa Taylor dated 14 January 2016, para 13, as well as the oral submissions of counsel for the Claimant at the hearing). But, to the extent that any element of the counterclaim was an element also of the claim, it is quite possible for decisions relating to the claim to be relevant also to the counterclaim. For example, in deciding the costs question, I had to decide whether the Claimant behaved unreasonably in bringing the claim to remove the First Defendant as executor. I decided that he had not, for the reasons given. If any element of the counterclaim rests on an assertion that the Claimant behaved unreasonably in bringing the claim, then that element is already decided as between the parties, and there is nothing wrong in the Claimant pointing it out.

In that written submission, the First Defendant also makes a number of other points. These include the following:

The Claimant’s counsel spent a great deal more time in argument at the hearing than did the First Defendant;

The new counterclaim was a genuine attempt to summarise three years of delay to estate administration, and it is difficult to summarise such chronic negligence transparently in just a few pages;

The Claimant’s legal team changed just after the new counterclaim was filed and some of the complaints of incoherence may be put down to their lack of familiarity with the case; the change in team should not prejudice the Defendants;

The First Defendant in drafting the counterclaim himself was seeking to avoid unnecessary expense to the estate;

The new counterclaim cannot be safely struck out without the risk of a miscarriage of justice;

The counterclaim is in part also against Stuckey Carr & Co both “to avoid the indeterminacies of reference and liability” and because Deputy Master Mark suggested on 3 February 2015 that some of the counterclaim may be against the Claimant’s firm”;

The First Defendant did not adopt a “scattergun approach” in his pleading; it is simply that there were a lot of instances of negligence that needed to be referred to, as the estate assets all “had a relevant history” going back to when the will was drafted in 1994.

I have considered everything that the First Defendant has said, and in particular all these points. Some of them have or may have a factual foundation (a, b and d, and part of c). There is wishful thinking in others (the rest of c, f and g). Other aspects (e, and generally) are for the Court to assess looking at the situation as a whole. I have no doubt that the First Defendant has done his best to write down the substance of the defendants’ complaints against the Claimant and his firm. But that is not enough. And I agree that it is a difficult (ie skilled) undertaking to make clear to the recipient of your pleading exactly what you reproach him for, when the events concerned occurred over a number of years, and also to give details of exactly how those events caused you loss, and quantifying that loss. But it has to be done if there is to be a fair trial. I have to judge the result by reference to the rules which apply to statements of case, and then stand back and assess whether the claim should be allowed to go forward in this form.

In his nine-page witness statement dated 22 February 2016, the First Defendant opposed the Claimant’s application for the grant of relief from sanctions because of a failure to serve written submissions on the First Defendant in time. The breach was trivial, being late by 3 minutes in serving two out of three defendants with submissions in reply to those of the First Defendant, and overnight in relation to serving the third, caused by a minor administrative mistake, and causing the defendants no inconvenience, let alone injustice, whatever. Though accepting that the breach was both “minor in itself and reasonably promptly rectified”, the First Defendant wrote 21 paragraphs of submissions, urging the court to deny relief from sanctions because

That witness statement also reiterated some of the points made in earlier documents about the nature of the counterclaim, again using over-sophisticated language (see eg para 8: “In our 29 September 2015 Summary, we explicated the Cause of Action as multiple instantiations of a breach of Duty of care owed to the Testator’s Estate and its assets…”). It also repeated the point that the Claimant had changed his legal team to deal with the counterclaim, which meant there was a learning curve for the new lawyers involved. Indeed, at para 14, the First Defendant argued that the change was an abuse of the process. There may of course be costs consequences of changing representation, but, in the absence of evidence that this was done in order to make life more difficult for the Defendants, it is not an abuse of process. The First Defendant also submitted that the reason the Claimant had not pleaded to the counterclaim was that he had had no defence. Having read the counterclaim in both its old and its new versions, I do not accept this, as I explain below.

Many, perhaps most, of the problems which I have identified stem from the fact that the First Defendant is not a qualified lawyer, and appears to have no experience of this kind of litigation. So far as I am aware, no explanation has been given as to why the First Defendant has chosen to act in person throughout this litigation (cf para 3 of his witness statement of 7 December 2015, where the First Defendant says that the defendants “may well seek legal representation to professionally plead the Counterclaim in court”). I accept of course that (1) he is not obliged to explain himself, and (2) he has every right to act for himself if he wishes. However, it is desirable to stress that there are not in our system two sets of rules, one for those who employ lawyers, and one for those who do not. There is only one set of rules, which applies to everyone, legally represented or not. The courts cannot and do not modify the rules for those who are not represented: see eg Elliott v Stobart Group [2015] EWCA Civ 449, [39].

It may be that, at the margins, and where the courts are properly exercising discretion, the courts will allow a little more leeway to litigants in person than to those who have professional lawyers: cf Tinkler v Elliott [2012] EWCA Civ 1289, [32]. And there are occasionally legal procedural rules where the elements needed for the application of a rule may be impacted by the absence of knowledge or experience of legal processes. But such cases are by their nature rare. The general proposition is that there are no special rules for litigants in person as compared with those litigants who are represented. So I judge the position in this application by reference to the ordinary procedural rules applicable to everyone.

Significantly, what is being considered in this application is not the original counterclaim made by First Defendant. Instead, it is the revised version produced by First Defendant after comments by the Court and specific criticisms by the Claimant. The First Defendant knew what was wrong with the statement of case he had produced. He had a second chance, either to take professional advice, or at least to consider the specific rules to which his attention was expressly drawn by the order of the Court, and to produce a compliant statement of case (which of course he could submit to a professional lawyer for his opinion before actually filing and serving it). I do not know whether the First Defendant in fact took any advantage of these opportunities, but it is right to record that he had them: cf Kim v Park [2011] EWHC 1781, [40], cited by the Claimant.

I do not doubt the First Defendant when he told me at the hearing in January that he thought his revised counterclaim was coherent. He wrote, he said, in the manner of a forensic psychologist, and was surprised that the Claimant’s lawyers were unable to understand. But, with respect, the test is not whether he as a former forensic psychologist finds it coherent, but whether the Court does. It is however right to record that the First Defendant said at the hearing that if the counterclaim was not compliant and the Claimant could not extract a cause of action from it, then he was sorry about that.

In accordance with CPR rule 3.4(2), in my judgment there has been a serious failure to comply with the relevant rules and practice directions, and also therefore with the court order of 30 July 2015, as I have already said (see para 29). More importantly, in my judgment this counterclaim as it stands is likely to obstruct the just disposal of the proceedings. The wealth of verbiage and over-elaboration is embarassing. It is largely impossible to plead to, even if some allegations emerge from the mass of detail just about clearly enough to be able to form the object of a defence by the Claimant. I am thinking for example of the allegation of failure to pursue the Hong Kong bank in relation to the face-value of the bank passbook, in section 5 of the counterclaim, at pages 7-9. But most of the counterclaim is not as clear as this. I readily accept the argument of the Claimant that it is not possible to plead to it in practice. I also accept that that is why the Claimant has not so far attempted to plead to it.

I can illustrate the importance of the First Defendant’s failures by reference to a not dissimilar case, decided a few years ago. In Towler v Wills [2010] EWHC 1209, [17]-[18], the defendant made an application to strike out the amended particulars of claim under the power in rule 3.4. Teare J described the particulars as “perhaps concise, but they are not clear or coherent.”

In relation to the application itself, he said:

The judge accordingly struck the claim out. I note in passing that the fourth to sixth sentences of paragraph 18 (from “Time and costs” to the end) were cited with approval by Sir David Eady in Khosravi v British American Tobacco [2016] EWHC 123, [15], another case of an application under rule 3.4. The judge in that case struck out that claim too.

Once more I remind myself that I must try to give effect to the overriding objective in CPR rule 1.1, of dealing with cases justly and at proportionate cost. CPR rule 1.2 sets out a number of elements included in this idea:

Looking at these in the present case, I note that the Claimant is represented by solicitors and counsel, whereas the Defendants are represented (apparently by choice) by the First Defendant, who is not a lawyer, yet is highly educated and very articulate, but also very opinionated. It is not clear how much this case is worth. The value of the house for probate was £595,000, and the claim (whatever it actually is) is certainly not for anything like the whole value. The First Defendant says the bank account claim could be worth as much as £200,000, including accrued interest. To my mind it would only be worth a fraction of that at best. I do not see much financial value in the remainder of the complaints. Overall, in money terms, this is a modest claim by modern High Court standards, where claims under £500,000 in value are usually transferred out to the county court. However, I have little doubt that the Defendants see the counterclaim as important to them because of the frustration and sense of inability to get on with their lives that (as they would say) the hold-ups in the administration of their father’s estate have caused. I also accept that the counterclaim is important to the Claimant because of reputational damage that may flow from the Defendants’ success (though some damage is less than it might have been because the Claimant is now retired).

Although in the present position it is difficult to be sure, I do not consider that the kinds of claims which the Defendants seek to advance are particularly difficult in law, though the factual details may not be straightforward. I am not in a position to make an accurate assessment of the parties’ financial means. All are individuals. The Claimant is a retired solicitor, and presumably has the benefit of professional indemnity insurance. The First Defendant says he is semi-retired, and presumably has a pension from his civil servant days. I do not know much about the other Defendants. None of them however has had to pay lawyers’ fees, at least on a regular basis. The Defendants do of course share one third each in the estate of the deceased.

A question arises as to whether the principles developed for cases of application for relief from sanctions (as in the well-known Denton and Mitchell cases) should be applied also to cases of application for an order striking out a statement of case. This was not addressed in the submissions before me, but I am aware that in Walsham Chalet Part Ltd v Tallington Lakes Ltd [2014] EWCA Civ 1607, the Court of Appeal discussed this point. At [44] Richards LJ (with whom McCombe and Sharp LJJ agreed) said:

Bearing in mind what the Court of Appeal there said, I am in no doubt that in this case the breach of the rules and therefore also my order of 30 July 2015 was of the most serious kind, because it renders a fair trial impossible so long as it remains unremedied. There is no good reason for the breach. The Defendants have chosen to act in person, and the First Defendant, for all his intelligence and articulacy, is not able to draft the counterclaim in terms that can be pleaded to. Despite this, the Defendants have seemingly not taken any legal advice. I must therefore go on to look at all the circumstances of the case.

This litigation has lasted now for more than two years, not including pre-action phases. So far in this litigation there have been at least nine hearings. Thousands of pages of documents have been prepared and read for those hearings. The claim itself was resolved last July. The counterclaim is nowhere near ready for trial. The Defendants have had two attempts at putting their counterclaim in a form which can be understood and pleaded to, but without success. At the present rate of progress, and even assuming that the Defendants were prepared to do what was necessary, the case would not be ready for at least another year, perhaps longer.

On the face of it, the present case is one where the statement of case in question, the counterclaim, should be struck out as an abuse or as obstructing the just disposal of the proceedings. I have however considered whether it would be possible to make an “unless” order, such that, if the Defendants within a certain time did not file a further revised counterclaim, this time complying with the rules, the counterclaim would stand automatically struck out: cf Forrester Ketley & Co v Brent [2005] EWCA Civ 270 , [12]-[14]. I have concluded that this would not be an appropriate course to take in the present case. My reasons are these.

First, the Defendants have already had one opportunity to rewrite their counterclaim in the face of one that palpably did not comply with the rules. Although the second version is an improvement on the first, it still falls far short of what is needed. It is not for the Court in effect to rewrite the statement of case by setting out in detail what needs to be included and what left out, and how each point needs to be put.

Second, even though they served the revised statement of case at the end of September, and it was criticised by the Claimant from November onwards, in the context of this application, at the hearing in January, and in the written submissions that followed it, the Defendants have shown not any acceptance of the existence of defects in the revised statement of case. I have discussed the Defendants’ attitude in paragraphs 48, 49, 54 and 55 above. Far from being prepared to put right any problems, they seek to blame the Claimant for delaying the proceedings, and indeed seek “summary judgment” against him on the basis that the Claimant has failed to defend the counterclaim.

Thirdly, in Kim v Park [2011] EWHC 1781, [40], Tugendhat J said that a party should normally have the opportunity to correct a defective pleading “provided that there is reason to believe that he will be in a position to put the defect right”. The First Defendant has already had one opportunity, and has produced a second defective statement of case. The First Defendant’s attitude and approach to this litigation throughout has been to deal with every step and every hearing on his own terms. So, even if the Defendants were given the opportunity to, and did, revise the counterclaim further, I have no confidence that what would be produced would come anywhere near complying with the rules. Moreover, there is no love lost and no co-operation between the parties. There would inevitably be a dispute as to whether the Defendants had complied or not, and there would have to be another lengthy hearing to resolve the issue.

Fourthly, I am reasonably sure that, even if, contrary to my previous point, the Defendants did provide a further revised counterclaim that was somehow compliant, the Claimant would make significant requests for further information under CPR Part 18, which would take yet further time and probably require even more court hearings.

Fifthly, as set out above in paragraphs 44 and 47, the Defendants require permission to make a counterclaim against someone other than the Claimant, and probably also against the Claimant in his capacity as a solicitor advising the deceased. There would therefore have to be a further hearing at which the strength of the claims would be considered.

But the claims which can be perceived at present, however inadequately, in the revised counterclaim, are weak. I had originally thought (and I think Mr Bowmer for the Claimant had thought) that there were three main areas of dispute: the delay in the administration, the problems with the house deeds, and the Hong Kong bank account. However, at the end of the hearing in January, the First Defendant told me that really there were only two, the deeds and the bank account, and everything else was really just “context”.

As to the claim of delay in the administration, if this is a separate head of claim, the problem for the Defendants is that the First Defendant was also a co-executor. His obvious remedy was to apply to remove the Claimant. But he did not. Indeed, he insisted that the Claimant should stay. It was the Claimant that made the first move. As to the claim in relation to the deeds of the deceased’s house, Deputy Master Mark held that the Claimant had no duty to do what the First Defendant said he should have done, and I held that the Claimant’s behaviour was not unreasonable. It will be hard for the Defendants to make a case on the deeds without mounting a collateral attack on existing judgments.

As to the Hong Kong bank account, the First Defendant disclosed a statement from the bank’s successor showing that withdrawals had been made by the deceased from the account without entries in the book (see para 35 of my costs judgment of 20 November 2015). So any claim against the bank would be at best an uphill struggle. Moreover, the First Defendant is now the sole executor and can take action by himself if he thinks fit. If he wins, there is no substantive loss caused by the Claimant. If he loses, the Claimant can have caused no loss by not suing.

Looking at the matter in the round, I ask myself, why should the Court grant a further indulgence to parties who have shown no signs of understanding what is wrong with their statement of case, who have shown no apparent interest in obtaining professional help to resolve the difficulty, who need permission to make the counterclaim so far as it involves third parties, but have not applied for it, and whose case, so far as it can be gleaned at all, is at best weak?

Moreover, I must consider the position of the Claimant. He too is entitled to be treated fairly by the legal system in these proceedings. Allegations have been made at him, which have been hanging over his head now for some years. He is entitled in all justice to know what is the case which he has to meet. However, because of the state of the revised counterclaim, he does not know it sufficiently to be able to plead his defence. The case cannot proceed on this basis.

In addition, there are the interests of other litigants with disputes waiting for resolution in the system. The resources which the courts have today are sadly limited. There must come a point where the litigants in a given case have had as much of the resources as is proportionate, in particular given the way in which they have been making use of them. The interests of the other users of the system must be taken account of. CPR rule 1.2(2)(e) specifically requires the Court to consider this.

This litigation has already consumed enormous amounts of court time and resources. It is not justified to keep it going on the speculation that the Defendants will behave differently in future, and that their case will turn out to be rather better than it appears at this stage. Of course it is a strong thing to strike out a statement of case, especially that of a litigant in person. But I am satisfied that, taking all the circumstances of this case together, I should strike out the counterclaim under rule 3.4(2)(b), as an abuse of the court’s process or as otherwise likely to obstruct the just disposal of the proceedings.

In these circumstances it is not necessary for me to go on and consider whether it is appropriate to allow the amendment of the application notice and the claim for summary judgment. The test for summary judgment is not the same as for a strike-out, and the focus of the arguments in this application was on the latter, not the former. So, in light of my decision on the strike-out, I prefer to say nothing about it.