Keays v Parkinson, The Executors of the Late

This is my judgment on the defendants’ application by a notice dated 3 May 2017 which seeks:

The claimant, Flora Keays, is a daughter of the well-known Conservative politician, Cecil Parkinson (“the deceased “). She was born on 31 December 1983, and is now aged 34. Following severe epilepsy in infancy and early childhood, and brain surgery at age 4, coupled with other medical issues in later life, the claimant suffers from reasonably severe physical and mental disabilities. It is common ground that she lacks capacity to conduct litigation. Ms Keays (who is now aged 70) has never married, and has devoted her life to the claimant’s care, welfare and education since her birth.

Until his death, the deceased was making provision for the claimant, pursuant to an order of 9 March 1993, in the sum of £20,000 p.a, which was paid in quarterly instalments of £5,000 to Ms Keays by his solicitors, Farrer & Co LLP (“Farrers”).

The deceased died on 22 January 2016, leaving a will dated 13 January 2009 (‘the Will’). The defendants, Christopher Lewis (a solicitor) and Emma Parkinson (also known as Emma Owrid – a daughter of the deceased), are the executors of the Will (“the executors”).

The net value of the estate for probate is declared at £1,141,310.

The beneficiaries under the Will are the deceased’s widow, Lady Anne Parkinson and his 3 adult daughters of that marriage, Mary Parkinson, Emma Parkinson and Joanna Bamber (“the beneficiaries”). Mary Parkinson, sadly, died on 10 December 2017. The Will makes no provision for the claimant. Clause 3 of the Will provides:

This is apparently a reference to a life insurance policy, the proceeds of which amount to about £350,000 (“the proceeds”). Mr Lewis’ first witness statement dated 30 March 2017 on behalf of the executors states that the claimant is the sole beneficiary of the policy. This is inaccurate. The true position is not entirely clear; but appears to be that the proceeds are held on trust (“the trust”), of which the claimant is the nominated beneficiary, subject to an overriding power of appointment in favour of other potential beneficiaries. The trustees of the trust are Ian Cadzow (a son-in-law of the deceased) and Richard Parry, a former partner of Farrers. Farrers act for the executors and the trustees, but not the beneficiaries.

On 1 March 2016, Farrers made one last payment of £5,000 (without identifying its source) to Ms Keays; and no further payments have since been made. Ms Keays’ evidence is that this has placed her, and indirectly the claimant, in severe financial difficulties; resulting in her being unable to meet the mortgage payments due in respect of the house where she and the claimant live, or to meet other essential and pressing needs, including repairing the central heating boiler.

Probate was granted to the executors on 22 April 2016. In June 2016, Mr Parry wrote to Ms Keays informing her that the quarterly payments of £5,000 were not to continue, but that the deceased had made “other arrangements”.

Initially, Ms Keays instructed a firm of solicitors, Kerman & Co. They corresponded with Farrers on her behalf seeking to investigate the position as to the proceeds, and this continued until 1 September 2016. However, no payments were made by the trustees to Ms Keays during this period.

Ms Keays could not afford to continue to instruct Kerman & Co (and they did not accept cases on a conditional fee agreement basis). She therefore instructed direct public access (DPA) counsel, who is acting on a conditional fee basis, with no uplift. Ms Keays’ position throughout has been that her preference then and now would be to instruct a local solicitor (with relevant expertise) to act on the claimant’s behalf, but that throughout she has not been able to afford to do so.

On 20 October 2016 (the day before the limitation period expired), DPA counsel wrote to Mr Parry intimating a claim under the 1975 Act; and given the imminent expiry of the limitation period, suggesting a “Standstill Agreement”; which was entered into the following day. Farrers then wrote on 26 October and 14 November 2016 seeking information as to the basis of the claim. There was also without prejudice correspondence (which I have not of course seen), but the open correspondence indicates that this did not set out details of the claim.

On 18 January 2017, the executors served notice terminating the Standstill Agreement, so that the period for bringing the claim expired on 1 February 2017. On 8 February 2017, DPA counsel informed Farrers by email that his client had forwarded him a draft statement for editing and discussion; and that the application would be made shortly.

The claim was issued on 6 March 2017, some 5 weeks out of time. It seeks provision under the Inheritance (Provision for Family and Dependants) Act 1975,

The executors were the only defendants to the claim; although the beneficiaries should have been defendants at the outset. (On 9 April 2018 I gave permission to bring the claim out of time and ordered the beneficiaries to be joined to the claim.)

Farrers responded to service of the claim on 23 March 2017 by reserving their position as to whether permission should be given to bring it out of time; and suggesting that Ms Keays disclose to them documentary evidence to support the contents of her witness statement, in particular as to the claimant’s current health and prognosis, and as to her and the claimant’s financial position. By April 2017, Ms Keays was facing possession proceedings by her mortgagee; and her counsel wrote to Farrers seeking an interim payment to enable her to discharge the arrears. Farrers responded seeking detailed information about the mortgage and the amount of the arrears; however, Ms Keays was able to discharge the arrears then due from the fee she received by giving an interview to a national newspaper in April 2017. This was only a temporary respite: further arrears accrued. These have been discharged by the trustees by 3 direct payments to the mortgagee (totalling £8,970.89) on an entirely ad hoc basis, without any commitment to continuing payments. Ms Keays’ evidence (which is uncontradicted) is that this has caused her embarrassment and difficulty with the mortgagee.

The executors’ evidence in the claim seeks to “preserve” their position to defend it. The evidence does not deal with property falling within sections 9 and 10 of the 1975 Act, as required by CPR PD 57A para 16(1). It states, wrongly in my judgment, that the executors are “in the dark” as to the claimant’s needs and resources, when, as noted above, these are set out in the evidence in support of the claim. As to beneficiaries’ needs and resources, although the executors have been effectively acting on behalf of the beneficiaries, their evidence does not deal with these at all; nor does it state (as the executors’ counsel told me was the case) that the beneficiaries’ position is that any provision for the claimant should not be limited by reference to the beneficiaries’ resources (thereby rendering them irrelevant).

CPR 21.4 (3) provides:

The rules provide for self-certification by the litigation friend that she satisfies the conditions specified in CPR 21.4(3): CPR 21.5. Ms Keays filed and served such a certificate on 19 June 2017, albeit that she was late in doing so.

CPR 21.7 provides for the replacement of litigation friend:

The executors’ counsel referred in her skeleton argument to two authorities as giving guidance that the discretion to remove a litigation friend is a ‘full one’ and that (in the context of Family Division cases) the Court must seek to give effect to the overriding objective in FPR 2010 r 1.1: A (Children) [2001] 1 FLR 723; QS v RS [2016] EWHC 1443 (Fam) at paras 23-24. The first case appears to contain no relevant judicial observations. As to the second case, it is authority for the proposition that when exercising its powers to terminate the appointment of a child’s guardian under FPR 2010 r 16. 25 (which is in almost identical terms to CPR 21.7), the court must seek to deal with the case justly having regard to the welfare issues involved. I discuss the relevance of the overriding objective to this case in para 55 below, but these decisions did not assist me.

I was not referred to any authority directly on the court’s power under CPR 21.7. As to whether the litigation friend has an “adverse interest”, I respectfully adopt the remarks made by the Deputy Judge (Lawrence Rabinowitz QC) in Davila v Davila (18 April 2016) at [137]:

The executors seek to remove Ms Keays as the claimant’s litigation friend on the grounds that she;

The issue of Ms Keays’ suitability was first raised in Farrers’ letter of 20 December 2016, in which they referred to a conflict of interest between her and the claimant. In subsequent correspondence, and in their evidence in opposition to the claim, the executors raised it again, and suggested that an independent solicitor should be appointed as the claimant’s litigation friend: Mr Lewis’ first witness statement dated 30 March 2017. However, there was no offer before the issue of the application to meet the costs of the litigation friend.

As noted above, the application notice seeks the appointment of a specific solicitor, Andrea Zavos (of Boodle Hatfield LLP), and, for the first time, that the costs of the litigation friend be paid out of the deceased’s estate.

The first hearing of application was before Deputy Master Lloyd. He directed that the parties make enquiries as to whether the Official Solicitor would be willing to act as the claimant’s litigation friend; and adjourned the application. These enquiries were made; and the Official Solicitor responded, confirming that he would consent to act, provided that the court ordered that his costs and the costs, charges and expenses of the solicitor that he instructed be paid from the estate on the indemnity basis.

At the second hearing of the application (26 September 2017) before me, the executors agreed to fund, not just the costs of a suitable litigation friend of acting as such, but also her/his litigation costs.

In the light of this, Ms Keays no longer opposed her replacement in principle, but expressed several reservations about whether the Official Solicitor was an appropriate choice. I made an order which included the following:

“… AND the Defendants having agreed that the reasonable costs of the replacement litigation friend appointed in accordance with this order

i)

of acting as the Claimant’s litigation friend; and

ii)

of conducting this litigation on behalf of the Claimant,

shall be paid out of the estate of the late Lord Parkinson on a solicitor/own client basis, to be assessed at the Senior Court Costs Office if not agreed

…

IT IS ORDERED THAT

1.

By 4pm on 11 October 2017 Sara Keays (‘the Respondent’) shall send to the Defendants’ solicitors the names of three solicitors willing to act as the Claimant’s litigation friend.

2.

By 4pm on 25 October 2017 the Defendants shall send any comments on the Respondent’s proposed litigation friends to the Respondent.

3.

If the parties are agreed as to the identity of a replacement litigation friend, they shall file a draft consent order providing for

i)

his/her appointment in substitution for the Respondent; and

ii)

the payment of the reasonable costs of the substituted litigation friend for acting as such and of conducting the litigation,

in both cases on a solicitor/own client basis, to be assessed at the Senior Court Costs Office if not agreed.”

4.

If the parties cannot reach agreement as to the identity of a replacement litigation friend, the Defendants’ application shall be re-listed...”

On 11 October 2017, the claimant’s counsel emailed Farrers the names of 4 solicitors (2 of which were at the same firm and would act together) willing to act as the claimant’s litigation friend:

Farrers replied on 16 October 2017 stating that the executors would consent to the individuals at Clarke Willmott acting as the claimant’s litigation friend. On 27 October 2017 the claimant’s counsel informed Farrers that Ms Keays preferred replacement litigation friend was Michelle Rose. Farrers were and remain unable to accept the appointment of Ms Rose, for reasons that are considered below. They have expressly sought to withdraw any offer to pay her costs either for acting as litigation friend or for conducting the litigation.

In these circumstances the following issues arise:

The evidence in support of this issue in the application falls into two main categories. Firstly, the executors rely upon Ms Keays’ conduct in relation to the deceased over a 12 year period (which concluded 22 years ago): from the claimant’s birth in 1983 to an unsuccessful appeal in 1995. This included reliance upon a judgment of 9 March 1993 (which is generally favourable to Ms Keays) in an application for maintenance of the claimant, in which certain specific items of expenditure are referred to excessive or “somewhat excessive”; and to Ms Keays having been in breach of an injunction granted in 1993.

Relying on this evidence, the executors submitted that Ms Keays’ role as the claimant’s litigation friend was tainted by her “highly litigious” relationship with the deceased, as well as her “bizarre perception” that the deceased’s family, the executors and their solicitors are involved in some kind of conspiracy against her. They submitted that Ms Keays’ entrenched hostility towards the deceased, and by extension his family and the executors was obstructing the progress of this case.

I regard the evidence put forward by the executors as being of very limited probative value, not least because the last event relied upon was 22 years ago. Further, not surprisingly, because it is highly critical of Ms Keays, she responded with lengthy and detailed evidence seeking to rebut the criticisms made of her. The issues raised in this extensive evidence are ones which it is not possible to resolve without hearing detailed argument and, in respect of some of them, there being disclosure and oral evidence to resolve the issues of fact arising. However, to do so would be wholly disproportionate in an application of this nature, which in my judgment, should be determined on a summary basis.

For the avoidance of doubt, I do not consider that this evidence shows that Ms Keays is extravagant, or that she is likely to commit a contempt of court in these proceedings. I also do not accept that Ms Keays had at the date of the deceased’s death a ‘highly litigious’ relationship with him. Ms Keays’ unchallenged evidence is that she has not sought to recover anything from the deceased since the maintenance order in 1993, which the deceased volunteered to continue upon the claimant attaining her majority in 2002. As for the deceased’s family, Ms Keays’ unchallenged evidence is that she has had no “dealings” with them for 38 years. Ms Keays does express in her evidence anger and frustration that the support provided by the deceased to the claimant (as set out above) has been abruptly removed, causing her and Ms Keays’ serious financial hardship. Although she criticises Farrers, she generally does so in their capacity as solicitors acting for the executors, the beneficiaries and the trustees (although, as noted above, her belief that they act for the beneficiaries was mistaken). She also mistakenly believes that the executors are able to distribute the proceeds, and criticises them for not having done so; whereas, in fact, it is the trustees who made that decision. However, a degree of confusion on Ms Keays’ part as to whom Farrers are acting for in their various dealings with her since the deceased’s death is understandable (though less understandable on the part of her counsel). I therefore reject the submission that Ms Keays’ attitude towards the executors, the deceased’s family, the trustees or Farrers justifies her removal as the claimant’s litigation friend.

The second category of evidence relied upon by the executors relates to Ms Keays’ conduct of the claim since the death of the deceased. As noted, since October 2016, Ms Keays has instructed DPA counsel, and criticisms are also made of his conduct of the negotiations and the claim.

The executors rely upon the following procedural and evidential deficiencies that they say demonstrate that Ms Keays is incapable of conducting these proceedings competently on the claimant’s behalf:

As to (6), the executors’ counsel submitted that the executors had repeatedly made requests for relevant documents to be provided in the period before the claim was issued; and that they were not received. That is not supported by the correspondence -which asks DPA counsel to set out the basis of the claim, not to provide documents; although it is fair to say that the correspondence does not set out details of the claim. As noted, Ms Keays’ witness statement in support of the claim is, however, extremely detailed as to her and the claimant’s financial position. The executors’ counsel criticised Ms Keays for not exhibiting all the relevant documentation to her witness statement. However, I do not accept that it is unusual or unreasonable for a claimant not to do so. If the matters set out in the witness statement are put in issue by a defendant, then the court has power to order disclosure in respect of them.

Ms Keays did give substantial voluntary disclosure (some 300 pages) on 14 July 2017. The executors allege that this disclosure is incomplete, but I was not taken to any correspondence requesting further documentation.

As for the criticisms made of Ms Keays’ counsel, these were not relied upon by counsel in her skeleton argument. They are in my judgment irrelevant to the issue of whether Ms Keays is capable of fairly and competently conducting proceedings on behalf of the claimant; except insofar as they tend to exonerate Ms Keays from the failures set out above.

However, since Ms Keays’ dealings with counsel are of course privileged, it is difficult to assess whether the failures relied upon by the executors are attributable to her not engaging with the proceedings, or to her counsel not dealing with matters within a reasonable timeframe, or at all. One example is Ms Keays’ failure to respond to an open offer by the executors dated 31 January 2018 until 5 April 2018. Counsel’s letter dated 5 April 2018 on her behalf refers to her asking him to “prioritise dealing with a response”; and to the fact that he is a sole practitioner with no administrative backup or solicitor to assist and no “real time” funding. It seems likely that this failure is not attributable, or wholly attributable to Ms Keays. I am not therefore satisfied that the procedural failings relied upon by the executors are wholly or largely attributable to Ms Keays.

In these circumstances, I am not satisfied that if Ms Keays were able to instruct a competent solicitor with relevant expertise, she would not be able to fairly and competently conduct the proceedings.

The executors’ case on this issue is set out in paragraphs 45 and 46 of the witness statement of Adam Carvalho dated 3 May 2017:

“45.

… I suggest that there is a very real risk that in the circumstances Ms Keays maybe motived by her own conflicting interests to the detriment of securing the most beneficial outcome for the claimant.

46.

.. Ms Keays alleged current financial difficulties combined with the history of excessive expenditure, which was often sought to be recovered from Lord Parkinson before his death, along with the unexplained loss of the substantial sums given to her by Lord Parkinson (whether or not for Flora’s use) and the considerable sums obtained by way of libel damages, cast doubt on whether she can remain uninterested in the amount and manner in which any award is made is structured, and whether she is in a position to pursue single-mindedly the best interests of Flora at all times.”

In her evidence in response (her witness statement of 19 June 2017), Ms Keays makes the following points:

In the absence of provision by the deceased, the only resources which are available to the claimant are state benefits (which are insufficient to maintain her) and her mother’s resources. To the extent that provision is made from the deceased’s estate, this will reduce the demands made on Ms Keays’ financial resources and, possibly the time that she spends caring for the claimant. Her interests and those of the claimant are to that extent coincident. There is no evidence to support the submission that Ms Keays would seek to spend provision received from the deceased’s estate otherwise than for the claimant’s benefit; although such provision might reduce the amount of her own resources spent on the claimant. I therefore reject the suggestion that she has an interest adverse to the claimant.

I am not therefore satisfied that Ms Keays is not a suitable litigation friend within the meaning of CPR 21.4.

As noted, the application notice seeks the appointment of a solicitor proposed by the executors as being an appropriate litigation friend. That is an unusual application. The practical reality is that the litigation friend will have extensive dealings with the parent or person responsible for the child or protected party. The court should therefore in my judgment be reluctant to impose a litigation friend on the parent or responsible person; and should only do so if there is no other viable candidate.

My order of 26 September 2017 was directed towards enabling Ms Keays to identify a solicitor whom she considered suitable for the claimant and in whom she had confidence. It did not entitle the executors to nominate a litigation friend from those put forward by Ms Keays, or to veto a solicitor chosen by Ms Keays, in the absence of good reason for doing so. The executors’ counsel submitted that it was perverse for Ms Keays to insist upon the solicitor to whom the executors object. I reject that submission - provided the solicitor is otherwise a suitable appointee, in my judgment, Ms Keays should be entitled to choose the solicitor she prefers.

The reasons why the executors oppose the appointment of Ms Rose are set out in the witness statement dated 7 December 2017 of William Gordon, a partner of Farrers. He expresses two concerns about Ms Rose’s suitability to act as litigation friend, arising out of his dealings with her in an Inheritance Act claim in 2012 to 2014. These were, in summary:

Not surprisingly, Ms Rose considered herself obliged to file evidence dealing with the concerns expressed by Mr Gordon. The executors’ counsel also suggested in her skeleton argument that filing such a witness statement reinforced the executors’ concerns about her suitability to act. However, in my judgment, it was entirely reasonable on the part of Ms Rose to respond in the way that she did to the criticisms made of her.

Ms Rose’s evidence set out that she was unable to respond fully to Mr Gordon’s criticisms because of her duty to maintain her client’s confidentiality; but that, in the case referred to, contrary to Mr Gordon’s evidence, his clients had not been willing to engage with settlement negotiations. She also stated that, in that case, she was acting on her client’s instructions: her client was not a protected person and she was not acting as a litigation friend.

Her evidence also included the following:

In the course of the hearing, the executors’ counsel expressly accepted that the executors were not submitting that Ms Rose could not fairly and competently conduct the proceedings on behalf of the claimant. The allegations made by Mr Gordon against Ms Rose were not however expressly withdrawn.

In the light of Ms Rose’s evidence, the criticisms of her made by Mr Gordon are not in my judgment made out; and do not provide a basis for rejecting her as the litigation friend of the claimant.

Notwithstanding their concession set out above, the executors’ counsel submitted that it would not further the overriding objective for Ms Rose to be appointed, when personal difficulties had arisen between her and Mr Gordon. She did not refer me to any specific provision in CPR 1.1. The suggestion that the overriding objective requires harmonious personal interactions between solicitors acting for opposing parties seems to me to be unrealistic. In any event, any personal difficulties could be avoided if Mr Gordon (who does not seem to have had any previous involvement in this matter) was not involved. I do not therefore consider the possibility of personal difficulties between Ms Rose and the solicitor acting for the executors as justifying not appointing her. I shall therefore make an order appointing her as the claimant’s litigation friend.

As for Ms Rose’s costs of acting as a litigation friend and conducting the litigation on behalf of the claimant, the executors’ counsel (rightly) conceded that I had jurisdiction to order these to be paid from the estate: see CPR r 64.2(a). The right order in my judgment is that they be paid from the estate in the first instance; but that as between the claimant and beneficiaries, they are reserved to the trial judge.

Finally, I mention that although the executors in their capacity as such have no interest in the outcome of the claim, they have not taken a neutral position reflecting that absence of interest. Instead, they have actively defended the claim. This has included making the current application. The executors’ counsel informed the court that the stance taken by the executors was supported by the beneficiaries. This is not desirable because costs attributable to the executors’ role in the claim in their capacity as such ought to be clearly distinguishable from costs incurred in opposing the claim: see CPR PD 46, para 1.