Priti Patel v Nicholas O'Sullivan & Ors

This is the appeal of Miss Priti Patel (“the appellant”), who is the claimant in the underlying proceedings, against the orderdated 30 May 2025 of District Judge Bayoumi (“the Judge”), which refused the appellant’s application for a stay of proceedings and relief from sanction, summarily determined substantial parts of the proceedings adversely to the appellant, and significantly restricted the extent to which the appellant could rely on evidence at the trial of the remaining issues in the case.

The appeal is brought with permission granted by Mr Justice Michael Green on 20 October 2025.

By a respondent’s notice dated 12 November 2025 the first respondent seeks to uphold the Judge’s decision on the basis of the reasons she gave and for further reasons.

At the hearing before me, the appeal was advanced by Mr Satvinder Juss, counsel who appeared before the Judge. The first respondent was represented by Ms Kayleigh Bloomfield of counsel. I also heard from the second respondent and the fourth respondent, who both appeared in person.

Consideration of the issues requires looking in some detail at the facts and circumstances that led to the making of the Judge’s order, including what occurred at the hearing. In consequence, this judgment is fairly long (Footnote: ¹). It is structured as follows:

Kantaben Ratilal Patel (“the Deceased”) died on 3 December 2020 aged 76 years. The appellant is the daughter of the Deceased and latterly lived with her at the Deceased’s house, where indeed she continues to reside. The second respondent is the sister-in-law of the Deceased. The third respondent is the Deceased’s grandson and the son of the fourth and fifth respondents. The fourth respondent is the Deceased’s son. The fifth respondent is the wife of the fourth respondent. The sixth respondent is a Hindu Temple and charitable body.

The Deceased made two wills: a will dated 29 June 2020 (“the June Will”) and a will dated 29 July 2020 (“the July Will”). The first respondent, a solicitor, is the executor of the July Will, which he prepared, and took a grant of probate of the July Will on 4 January 2021. In the substantive proceedings, the appellant seeks an order revoking the grant of probate of the July Will and granting her probate of the June Will.

The June Will contained the following relevant provisions.

The July Will provided, so far as material, as follows:

On 14 February 2024 the first respondent commenced a Part 8 claim pursuant to CPR r. 64.2(1), seeking directions as to the administration of the estate of the Deceased. The defendants to the Part 8 claim were the appellant and second and third respondents. (In this judgment, I refer to parties only according to their designation in this appeal.) In particular, the first respondent sought a direction regarding “how the loans made to [scil. by] [the second respondent] by [scil. to] the Deceased during the Deceased’s lifetime should be treated for the purposes of administering the Estate, in particular whether: (i) they were repaid or part-repaid during the Deceased’s lifetime; and if so (ii) in what sums.”

With his claim form the first respondent filed his first witness statement. In paragraph 8 he explained that he was “unable to finalise the administration of the Estate due to the conflicting position taken by [the second respondent] and [the appellant] as to how a loan made by the [second respondent] to the Deceased during the Deceased’s lifetime and accounted for in the [July] Will should be treated within the administration of the Estate” because “[the second respondent] and [the appellant] disagree on whether the loan in question was part-repaid during the Deceased’s lifetime.” The exhibit to the statement included the inter partes correspondence giving rise to that issue. It also contained the first respondent’s attendance note of his meeting with the Deceased for the purpose of completing her July Will at offices in Barry. The exhibit shows that the first respondent had previously acted for and met the Deceased. Part of the attendance note reads as follows:

“NO [i.e. the first respondent] asked why she wanted to make a will. Mrs Patel said that her daughter, Priti was very manipulative (the client said she thought ‘she had something wrong with her – in the head’). Basically, since Mr Patel [the Deceased’s husband] had died, Priti had tried to run Mrs Patel’s affairs, including who was to inherit the home that she shared with Priti. She continued by saying that she had signed a will leaving her home to Priti, but that was not what she wished to happen.

NO asked why she would have signed such will if she did not want to leave her home to Priti. Mrs Patel stated that she was simply presented with that will having been told by Priti to sign it before the witnesses. She said felt under pressure to do so.

NO asked Mrs Patel whether she felt under pressure from anyone now. She replied ‘no, definitely not’.

NO was satisfied that Mrs Patel had no issues with capacity, and none with undue influence from anyone at the time of his meeting with her.”

On 1 March 2024 the appellant, acting in person, filed an acknowledgment of service, intimating her intention to contest the claim. Section B said, “There are issues pertaining to the estate which will be address [sic] in my defence following legal advice.”

On 28 March 2024 the appellant filed an application for a 16-week extension of time to respond to the Part 8 claim. In it she stated that she was suffering continued grief from the death of her parents and debilitating symptoms as a result of “harassment incidents and stalking” and “domestic abuse” that had left her feeling unsafe both when at home and when venturing outside. She explained that she wished to avoid contentious litigation but required an extension of time in order to collate evidence relating to a period of several years as well as to obtain legal advice and assistance.

By a consent order dated 23 April 2024 the appellant’s time for filing and serving her evidence in response to the Part 8 claim was extended until 10 May 2024.

On 7 May 2024 the appellant requested the other parties to the Part 8 claim to agree to an adjournment or stay of the proceedings. The first respondent asked her to provide further information to justify her request. The appellant did not reply.

On 10 May 2024 the appellant filed a witness statement in response to the Part 8 claim. The statement took issue with the second respondent’s case regarding the loan payments mentioned in the July Will. The appellant stated that the Deceased had told her that the second respondent was always putting pressure on her for money. She accused the second respondent of making false statements and fabricating evidence. In paragraphs 22ff she addressed the matter of the July Will. The paragraphs contain the following passages.

“22.

The strangest part of this Part 64 action by the Executor is that my mother supposedly made a will with the Claimant [i.e. the present first respondent] on 29 July 2020. I am not making a formal challenge to the terms or validity of the will. However, I do have doubts about whether my mother made comments that would leave me entirely disinherited from the estate should I challenge the Will of July 2020 and that I her daughter was coercing my mother.

23.

If my mother truly did make the will in July 2020 the circumstances are suspicious and currently under an investigation for further information.

24.

I have seen the Claimant’s attendance note dated 29 July 2020. It seems odd that the Claimant would have seen my mother, discussed her intentions with her for her will, prepared the will and had it signed, all on the same day. I am surprised that the Claimant had the time to do all that, and also that he did not give my mother a draft of the will to reflect on it before signing it.

…

33.

At this time I do not believe the estate accounts reflect either and is under further investigation.

34.

The Court will be informed of the progress of the investigations without prejudice.

…

36.

For the reasons I give above, I do not believe that Vimla loaned any money to my mother and/or the loans were repaid. I am also doubtful that my mother’s Will of July 29th 2020 which was made under suspicious circumstances currently under further investigation.

…

39.

There are serious allegations against the Executor of which further enquiries are being pursued which will make the Executor unsuitable for him to remain as an Executor, I am seeking his removal at issuing at PART50 AJA Application. The claimant was the draft person of the Will of July 29^th 2020 which was drafted under suspicious circumstances at a time my mother was dying was of cancer.

40.

Hence a Stay of Application will allow applications to be made against the claimant and investigations into dubious financial transactions throughout the administration of my mother’s estate and evidence alike.

…

42.

There are relevant medical and case mitigating factors to this claim which will be submitted to the Court for consideration Without Prejudice.

43.

I will remain amiable as self-litigant with intermittent Counsel opinion with the possibility of negotiation/mediation to seek solutions prior the listed hearing in June.”

On 17 May 2024 the first respondent filed his third witness statement. I need only refer to paragraph 10.

“10.

At various points within her statement, D2 [i.e. the appellant] queries the instructions which the Deceased gave to me, the circumstances surrounding the Will, and the work I did in carrying out those instructions (see for example paragraphs 22 - 24 on page 4). My attendance notes speak for themselves in relation to the instructions I received from the Deceased. As to her comment that it seems ‘odd’ that I took instructions, drafted the Will, and the Deceased signed it all on the same day, this is not uncommon at all, and happens frequently with elderly and unwell clients, given the obvious risks involved with delay. The Deceased was elderly at the time, and was suffering from cancer, so it was prudent to not delay any longer than necessary. As explained in my attendance note of the meeting, I proposed that she could stay local whilst I drafted the Will and she could sign it later that day, and she agreed.”

On 14 June 2024 there was a directions hearing before District Judge Vernon. The appellant did not attend, but the district judge considered written submissions by counsel, Mr Charles Mannan, who had been instructed by her that very morning under Direct Access. The submissions said (among other things) that the appellant was not attending because of her mental health; that she wished to attend future hearings remotely; that she considered that there were significant factual issues that made the claim unsuitable for the Part 8 procedure; that the first respondent ought to be removed as executor; and that the appellant questioned the validity of the July Will on the grounds, in particular, of the Deceased’s lack of capacity, which needed to be investigated in the proceedings.

Paragraph 1 of District Judge Vernon’s order provided, in particular, that, if the appellant sought to issue a Part 7 claim challenging the validity of the July Will, she must do so within 21 days; if she did not, case management directions for the further conduct of the Part 8 claim would take effect.

The appellant issued the Part 7 proceedings on 5 July 2024, claiming revocation of the grant of probate of the July Will, on grounds of lack of knowledge and approval and undue influence (but not lack of testamentary capacity), and an order pronouncing in favour of the June Will. By agreement between the parties, the Part 8 claim was stayed pending determination of the Part 7 claim.

On 19 July 2024 the appellant served her particulars of claim, which were drafted by Hermione Williams of counsel. Paragraph 19 averred that the Deceased lacked knowledge and approval of the July Will; the following are the main matters alleged in support of the averment: that the Deceased was in poor and failing health and suffering from physical and mental weakness; that the July Will was made at a time when the Deceased was temporarily residing, against her will, at the home of another member of the family, having been taken there by reason of threats and duress on the part of the fourth respondent; that at this time the Deceased was only permitted sporadic contact with the appellant; that the Deceased’s health had deteriorated badly when she was returned to her home on 30 July 2024; and that both the circumstances of the making of the July Will and its contents gave rise to suspicion. One of many matters relied on as giving rise to suspicion was the allegation that the supposed signature of the Deceased on documents said to evidence the loans to her from the second respondent was a forgery. Paragraph 21 of the particulars of claim alleged that the July Will had been procured by the exercise of undue influence by the second and fourth respondents.

The various respondents filed and served acknowledgments of service and defences, and on 19 August 2024 the court sent out a form N149C, notice of proposed allocation to the multi-track (though by CPR r. 57.2(4) all probate claims are allocated to the multi-track). Paragraph 3 of the notice required each party to file a completed directions questionnaire by 16 September 2024.

On 11 October 2024 the Judge held a directions hearing in the Part 7 claim. The order recorded that, on the basis of a report dated 16 September 2024 from a consultant psychiatrist, Dr Amrita Prasad, (which had not been provided to any other party) the Judge was satisfied that the appellant lacked capacity to conduct litigation. The order directed the claimant to identify an appropriate litigation friend. The directions hearing was adjourned to a date to be fixed. (On 16 October 2024 it was fixed for 13 November 2024.) By paragraph 1 of the order, the Judge reserved case management of the claim to herself.

On 31 October 2024 a certificate of suitability for the appointment of Mrs Safina Bibi as the appellant’s litigation friend was filed. The certificate said: “I am an independent professional party with no conflict of interest with the Claimant. I have been sourced as an independent professional to act as Litigation Friend for the Claimant. With experience of supporting vulnerable adults within the court environment.”

On 8 November 2024 counsel, Mr Richard Buston, wrote to the court to say that he had been instructed by the appellant on a direct access basis to attend the forthcoming directions hearing, that he had had a conference with both the appellant and the litigation friend and taken full instructions, that the appellant would be unable to attend the hearing remotely as she had a medical appointment, and that the litigation friend would also be unable to attend “as she is engaged with another trial.” By an email on 11 November 2024 Mrs Bibi confirmed to the court that she would be unable to attend the hearing. She wrote: “The reason that I am unable to attend the hearing is that I am mid Trial supporting a Litigant in Person at Leeds Family Court. This attendance was requested by the Litigant in Person on the 27th of September 2024 as part of my Professional Services.”

Mrs Bibi’s “Professional Services” are work that she carries out in providing support to litigants in person. According to the website of The McKenzie Friend UK Network, this involves acting as a McKenzie Friend and, apparently, assisting in family mediations. It appears that Mrs Bibi has a law degree but no professional legal qualifications.

The adjourned directions hearing in the Part 7 proceedings was held by the Judge on 13 November 2024. The appellant was represented by Mr Buston, but neither she nor Mrs Bibi was present. By her order on that date, the Judge appointed Mrs Bibi as the claimant’s litigation friend, dismissed the appellant’s application, made orally by counsel, for a 6-month stay of proceedings on the grounds of her ill health, and “consolidated” the Part 8 claim and the Part 7 claim under the case number of the Part 7 claim. (I should not myself think that consolidation was proper, as the claimant in each claim was a defendant in the other and neither claim was directed to stand as counterclaim in the other. An order that the claims be managed and heard together might have been more appropriate.) The order recited that the appellant had “failed to file a Directions Questionnaire as required by the order of 19 August 2024. The operative parts of the order included the following paragraphs:

“5.

Unless the Claimant files and serves on all other parties a completed Directions Questionnaire within 14 days of the date of this order the Claimant’s claim dated 5 July 2024 and Particulars of Claim dated 19 July 2024 shall be struck out without further order.

…

7.

A hearing shall be listed for 19 February 2025 at 11:30, with an estimated hearing time of 2.5hrs (plus 0.5hrs Judicial reading time from 11:00), to take place in person. The hearing shall take the form of a Costs and Case Management Conference and shall also be used to consider any ground rules required for the Claimant’s participation in the proceedings and any special measures which should be implemented under paragraphs 8, 9 and 10 of Practice Direction 1A.

8.

The Claimant’s litigation friend must attend the hearing on 19 February 2025 in person. If the Claimant’s litigation friend fails to attend in person the Court will hear submissions and will consider whether to strike out the Claimant’s claim dated 5 July 2024 and Particulars of Claim dated 19 July 2024. The Claimant may attend via Cloud Video Platform (CVP), the details for which she should request from the listings section. ...”

The appellant filed a directions questionnaire on 25 November 2024.

On 15 January 2025 Dr Prasad sent an email to the court with “the most recent review” of the appellant. (The document stated that the appellant did not want the report to be read out in open court.) The report is rather strange, in that, although Dr Prasad describes herself as “a Consultant psychiatrist” who has been “practicing [sic] as a specialist in psychiatry, within the NHS since 2002”, it was provided as an attachment to an email from a personal gmail account and does not itself give any address, whether personal or professional: it is in typescript on plain paper. I shall not set out the details of the report. However, it said that the appellant had spoken of her “difficulties” when discussing “evidential information” with Mrs Bibi and had told Dr Prasad “that she was still unable to open the necessary emails or other documents for court; unable to read the relevant notes; provide the necessary responses or even hear the information when Mrs Bibi tried to present such details to her.” Dr Prasad said: “She was unable to discuss any material facts of her case with me and if ever I persisted, she went into a ‘freeze situation’ where she was disconnected with the line of enquiry.” The conclusion was that the appellant did not currently have the necessary mental capacity to undertake court proceedings. Dr Prasad expressed confidence that, with the necessary resources for treatment in place, the appellant’s “capacity to litigate” would improve. She said: “I would recommend that sufficient time be provided by the courts to enable Miss Patel to pursue the necessary therapies and develop her capacity to litigate.” The report did not refer to the specific test for capacity to litigate.

On 18 February 2025 Mrs Bibi filed an application notice, which was dated 12 February 2025, requesting an adjournment of the case management conference listed for the following day, on the grounds of the appellant’s health issues.

The case management conference went ahead on 19 February 2025. The appellant was represented by counsel, Mr Muhammad Imtiaz, who pursued the application for an adjournment. The Judge rejected that application. I have seen a transcript of that hearing. Mr Imtiaz said that the first ground of the application was that “the appropriate instructions cannot be procured from the claimant due to her mental incapacity”. The Judge remarked:

“Just help me with that, Mr Imtiaz, because the whole point of Miss Bibi acting as a litigation friend, and as I understand it Miss Bibi is a professional, or purports to be a professional litigation friend, so she goes, I think she was not available at the last hearing because of professional commitments where she was acting as a litigation friend I want to say in the north of England, I cannot remember exactly where, but she was not in attendance then. Now that is the whole point of a litigation friend. They are appointed when a party lacks capacity.

So that is not news that Miss Patel lacks capacity and it is not news that Miss Patel suffers with mental health difficulties and we have seen the reports of the consultant psychiatrist. So if it is the case that actually Miss Bibi is unable to perform her role as a litigation friend that calls into question her, her suitability and it may be that she needs to be removed as litigation friend, but it cannot be, can it, that the basis of an application to adjourn where there is a protected party that has a litigation friend is that she continues to lack capacity. We know that, do we not?”

Mr Imtiaz then suggested that there might be a question whether Mrs Bibi had capacity to act as a litigation friend, though he said that he did not have instructions in that regard. The Judge observed that that was “an astonishing submission to be making”, and Mr Imtiaz replied, “It is, it is, Judge, and I am really having difficulties in relation to making this particular submission on this application.” The Judge remarked: “[I]f the claimant’s conduct continues in this way the Court may draw an inference that attempts are being made to frustrate the court process by repeated applications without merit on the same grounds. Does, do you follow, Mr Imtiaz?” In her ruling on the application (which I have read in an unrevised and unapproved version), the Judge said:

“The claimant in this matter who has the assistance of a litigation friend, Miss Bibi, seeks to make an application to adjourn today’s hearing for an indefinite future date on the grounds of Miss Patel’s continued lack of capacity and continued mental health difficulties.

That same application was made at the previous directions hearing in November 2024, which, as can be seen from the recitals in the order, was duly dismissed.

Mr Imtiaz, counsel who represents Miss Patel on a Direct Access basis, confirmed with the Court that there has been no material change in circumstances since November but that his instructions are to seek a further application to adjourn on the same grounds. That application is opposed by all defendants … and having considered the submissions of Mr Imtiaz I refuse the application to adjourn.

I have very serious concerns as to the potential suitability of Miss Bibi as a litigation friend if indeed she is unable to fulfil her role and to ensure that the claimant continues to comply with directions to progress this case. I have not been invited to consider removing Miss Bibi as a litigation friend as of yet, but no doubt all of the parties reserve their position in that regard, as does the Court. As I explained to Mr Imtiaz, should the Claimant or Miss Bibi’s conduct continue in this way to make further applications on the same baseless grounds the Court may draw an inference that the claimant or her litigation friend are attempting through these meritless applications to frustrate the court process. The application is refused.”

By her order (which is dated 3 March 2025, though that is clearly when it was drawn and sealed) the Judge gave directions up to trial. Paragraph 2 provided that the appellant be permitted to attend all future hearings by CVP and that she be afforded additional breaks during cross-examination as reasonably required. Paragraph 8 gave directions for extended disclosure. Paragraph 9 concerned witness evidence:

“9.

Evidence of fact will be dealt with as follows:

a.

By 16:00 on 23 April 2025 all parties must serve on each other copies of the signed statements of themselves and of all witnesses on whom they intend to rely and all notices relating to evidence.

b.

Oral evidence will not be permitted at trial from any witness whose statement has not been served in accordance with this order or has been served late, except with the permission of the Court.

c.

Witness statements filed in accordance with this provision after the date of this Order must comply with the Practice Direction 57AC. Those witness statements which have already been filed within the Part 64 Claim need not be redrafted to comply with PD 57AC, having been initially filed and served within proceedings which are excluded from the provisions of PD 57AC under paragraph 1.3(8) thereof.”

Paragraph 10 provided that any party seeking to rely on expert evidence must make application in that regard by 30 April 2025, setting out details of the nature of the evidence for which permission was sought. Pursuant to paragraph 11, the trial was listed for a 5-day hearing to commence on 11 August 2025.

Accordingly, witness statements were due to be served by 4 p.m. on 23 April 2025, and any application for permission to rely on expert evidence was due to be filed by 30 April 2025.

By email to the first respondent’s solicitors and to the court on the later afternoon of Saturday 19 March 2025, Mrs Bibi sent a copy of a short letter dated 30 June 2021 from a “Questioned Document Examiner”, who said that she had examined a number of documents on behalf of the appellant, which had raised “some concerns” regarding a disputed signature of the Deceased, and that examination of original documents was recommended.

By email on 21 March 2025 Mrs Bibi confirmed to the court that she and the appellant were both available for a trial from 11 to 15 August 2025.

After business hours on 22 April 2025 Mrs Bibi wrote to the court in the following terms:

“Due to the Claimant’s PTSD and resulting mental health difficulties, they have been unable to complete their witness statement at this time.

The Claimant finds it extremely distressing to revisit events and review the evidence, particularly in relation to the deceased and the queries raised. This has significantly impacted their ability to engage with the process. These circumstances, combined with ongoing financial hardship, have further aggravated the Claimant’s stress and anxiety, including the onset of panic attacks.

I wish to inform the Court that the Claimant’s health is currently under further medical review. The Court will be updated in due course following the outcome of these medical assessments and upon receipt of further advice from Counsel.

As Litigation Friend, I have made every effort to gather evidence as best as possible and will continue to review all documents presented by the parties.

I am currently seeking legal advice from Counsel to ensure that all further steps are taken appropriately and in the Claimant’s best interests.”

The first respondent’s solicitor responded on 23 April 2025; the letter, which was accompanied by the first respondent’s witness statement, read in part as follows:

“Your letter, in which you notify the Court that the Claimant will not be complying with the direction to serve witness statements by 23 April 2025 (today’s date) was sent at the 11th hour, without any prior notification to the parties that the Claimant would not be able to comply, and without any request or application for an extension, and also contains no indication of when the Claimant will be able to comply. The reasons given for the Claimant’s non-compliance have already been dismissed by the Court twice when raised in support of her applications to adjourn and stay the proceedings. It is an unacceptable way to conduct litigation, particularly in the face of such a significant breach of the directions.

Whilst our client is under no obligation to do so, and you have not even made a request for the same, he is willing to allow an extension of 7 days for the Claimant to file and serve her evidence (i.e. to 16:00 on 30 April 2025). …”

The litigation friend responded on 29 April 2025 with a combative, 9-page email, which was wide-ranging but did not make proposals for the service of witness statements. No such statements were forthcoming.

By application notice dated 12 May 2025 the first respondent applied for an order that, as the appellant had failed to serve witness evidence, she be debarred from relying on witness evidence or, in the alternative, she be required by an “unless” order to serve witness statements within 7 days. The application sought “consequential” summary judgment. The application was supported by a witness statement from Mr Patrick Murphy, the first respondent’s solicitor.

By email at 6.26 p.m. that same evening, 12 May 2025, Mrs Bibi sent to the court and to the respondents a letter as follows:

“I write in my capacity as Litigation Friend for the Claimant, Ms Priti Patel.

Due to a recent and serious deterioration in Ms Patel’s mental health stemming from ongoing incidents of stalking, harassment, intimidation, and molestation the Claimant is currently unable to comply with the Court’s direction requiring submission of the Pre-Trial Checklist by 14th May 2025.

I await an up to date medical report. The Court and All Parties will be notified.

Furthermore, attempts to seek a reasonable extension of time from the Defendants, in order to facilitate Alternative Dispute Resolution (ADR), have been rejected.

Additionally, the Claimant reserves her position and seeks costs sanctions against the Defendants for their continued abuse of process and for pursuing unnecessary and oppressive procedural applications, which have served only to aggravate the Claimant’s mental health and obstruct the proper administration of justice.

We thank the Court for its attention and await its directions.”

After that communication had been referred to the Judge, the court responded: “If you are seeking an extension of time or relief from sanctions, this must be done using N244 application, together with statement and evidence in support. A request made in a letter will not be actioned.”

On 14 May 2025 the second respondent filed her own application for a debarring order and summary judgment against the appellant.

On 16 May 2025 the applications were listed to be heard on 30 May 2025. It is to be noted that the pre-trial review was listed to be heard on 4 June 2025.

By email at 4.56 p.m. on 22 May 2025 Mrs Bibi sent to the court and to the respondents a number of documents, among which were: (i) a Part 18 request for further information, which included a request for further disclosure; (ii) copies of prior communications regarding ADR; (iii) a document describing itself as an application for relief from sanctions; (iv) a lengthy witness statement (unsigned) dated 21 May 2025 from Mrs Bibi in response to the respondents’ applications and in support of her own application and seeking a six-month stay of proceedings; (v) a short skeleton argument by Mrs Bibi dated 22 May 2025; and (vi) an updated report from Dr Prasad, based on consultations with the appellant in May 2025. Mrs Bibi’s witness statement was largely in the nature of a legal submission and included a fair amount of reference to case-law.

Shortly afterwards Mrs Bibi sent another email attaching further documents (Footnote: ²), including: (vii) a letter dated 2 May 2024 from Dr James Barber, a Consultant Clinical Oncologist at Velindre Cancer Centre, Cardiff, who had the care of the Deceased between March 2020 and October 2020, in which he expressed the view that between March and July 2020 the Deceased was in such poor health “that it seems unlikely she was able to leave her home without coercionand would have been, in my opinion, medically unfit to sign legal documents, and any documents that were signed have dubious legal validity.”

On 28 May 2025 Mrs Bibi as the appellant’s litigation friend filed an application for an order that the proceedings be stayed for 6 months “on the grounds of the claimant’s severe psychiatric condition, including suicidal ideation and risk of self-harm, as evidenced by the psychiatric report of Dr Amrita Prasad dated 21 May 2025” or, in the alternative, that the hearing on 30 May 2025 be either converted to a case management hearing or adjourned. The application was accompanied by another skeleton argument by Mrs Bibi and two documents in her name that were described as witness statements.

On 29 and 30 May 2025 there was a flurry of communications from Mrs Bibi. I shall not burden this judgment with them. Mrs Bibi sought permission for counsel, Mr Satvinder Juss, to attend via CVP on account of prior professional commitments. She asked that she, too, be permitted to attend via CVP, on the grounds that she was recovering from a serious sciatic injury. And she asked that the appellant be excused from all attendance, in the light of a letter dated 29 May 2025 from Dr Prasad (again, on unheaded paper and showing no address or contact details), which said:

“It has come to light that Miss Patel has made further attempts in recent days, to self harm in anticipation of the court hearing of the 30^th May 2025.

The risk of continuing physical and psychiatric harm remains high.

Please refer to my report of the 23rd of May 2025.

• In this report I strongly advise that, in my medical opinion, Miss Patel is medically unfit to attend hearings for the foreseeable future, including the hearing of the 30th of May 2025, either remotely or face-to-face.

I therefore recommend a stay of a minimum of six months to ensure that Miss Patel is provided with sufficient therapeutic intervention so that risk of continued physical and psychological harm can be mitigated.”

On 30 May 2025 the hearing of the respondents’ applications was listed for 1 hour. The appellant was represented by counsel, Mr Juss, who attended via CVP, as did Mrs Bibi. There is a transcript of the hearing.

At the beginning of the hearing, the Judge addressed the appellant’s failure to attend the hearing, even via CVP, and the evidence of Dr Prasad relied on to justify her non-attendance. The transcript records the following:

“District Judge Bayoumi: Right, well, at at this juncture can I raise with all the parties issues that came to my attention yesterday? Having had an opportunity yesterday to look at Dr Prasad’s further report, I had concerns as to the nature of the application, this being the second if not the third time that the Claimant has sought an application for a stay of proceedings and having been refused, which caused me to look in more detail at Dr Prasad’s report and her purported credentials. These are matters of public record. Now, to start with, it appears that the various groups of initials under her name setting out her various qualifications are as follows. The MBSHB is a Bachelor of Medicine and Bachelor of Surgery, as one would expect. The next is confirmation that she has a Diploma from the Royal College of Obstetricians and Gynaecologists. The third …, which is MRCGP, [is] that she is a member of the Royal College of General Practitioners. DPM is a Diploma in Pharmaceutical Medicine and FRACOG is that she is a member of or a Fellow of the Royal College of Obstetricians and Gynaecologists, I believe, in New Zealand. The General Medical Council’s register of practitioners confirms that she is on the GP Register but she is not on the Specialist Register.

In other words, she is not a Consultant Psychiatrist, or at least that is what it suggests. Dr Prasad also has sanctions against her on the General Medical Council website, which confirms the following – I do not know what the concerns are, because those are not published, but as result of concerns that she has given undertakings to notify the General Medical Council if she ever wants to apply for a post outside of the United Kingdom. The second is not to work as a general practitioner. Now, as I say, this is information that is in the public domain.

…

Now, for what I hope are obvious reasons, that is extremely concerning information. I make it clear that in no way do I suggest that only a consultant psychiatrist can determine or assist the Court in determining issues of capacity. I accept, sitting in the Court of Protection, that the Court often gets reports from social workers and the like where assessments of capacity have been made; I accept that. But there are concerns if somebody who is holding themselves out as a consultant psychiatrist is providing the Court with information based on that expertise when that expertise potentially does not exist.

…

I am very much alive to … [the fact that], notwithstanding what has now been uncovered in respect of this doctor that we may, nonetheless, be dealing with a Claimant who is highly vulnerable, who is suffering with serious mental health problems and, most importantly for the purpose of the Court, that she continues to lack litigation capacity, OK? I am very much alive to that, but you can understand why, at first blush, this issue of the doctor’s credentials gives rise to a number of concerns because … if she has, for example, diagnosed Ms Patel with complex PTSD and it is not in her gift to make that diagnosis – because if she is a nonpracticing GP one would question how she is able to make that diagnosis rather than a consultant psychiatrist – then that potentially calls into question everything else, does it not? Possibly, possibly. I say no more than possibly at this stage.”

The Judge then turned to a different matter, namely the conduct of Mrs Bibi as litigation friend.

“[T]he issue will remain as to whether the Litigation Friend has failed to properly prosecute this case. That is her job, that is what she was supposed to do. It was not waiting for the Claimant to give her instructions, because if she was able to do that we would not be here, OK? And whether we can press on with dealing with the application before the Court, and by extension or as a corollary consider the Claimant’s application for a stay and relief from sanctions, … or whether you come back [i.e. after a short adjournment] and tell me that we need to unpick the question of capacity again. There are a number of considerations.”

[After further discussion and an interjection by Mr Juss]

“It, it is hardly groundbreaking that a protected party, for whom the Court has appointed a Litigation Friend because they lack capacity to conduct litigation, is unable to give instructions. That is hardly groundbreaking, Mr Juss, with all due respect. That is why the Litigation Friend has been appointed. If the Litigation Friend is waiting for Ms Patel to give her instructions in order to prosecute this case it is not going to happen, is it? Ms Bibi’s job, as Litigation Friend, is to prosecute the case, is to file a statement setting out what Ms Priti Patel’s case is based on what she is able to understand because she said she is able to be appointed as a Litigation Friend.”

The Judge came back to the conduct of Mrs Bibi as litigation friend later in the hearing (transcript, page 30). When Mr Juss sought to explain the failure to act within time limits by saying that the appellant had “put all her eggs in one basket, which is a basket of a report from Dr Prasad which makes the case for why this cannot go forward”, the Judge remarked:

“One inference that arises from that, Mr Juss, is that the Claimant and the Litigation Friend have done so in an attempt to frustrate the proceedings. … Ms Bibi has been present in each and every hearing following her appointment. Ms Bibi was present when the directions were made for the exchange of witness evidence and the longstop of the 30 April in the event that the Claimant sought to rely on expert evidence in support of any facet of her validity claim. Ms Bibi did not need to know that there were concerns about Dr Prasad in order to prosecute the Claimant’s claim as she is duty bound to do. So, that is not the issue. The issue is why did [scil. didn’t] Ms Bibi, knowing what the Claimant’s claim is, undertake efforts to find an appropriate expert, if indeed that is what the Claimant’s case required, in order to make an application for permission to rely on expert evidence? There were issues about handwriting evidence. There were other matters as well.”

Mr Murphy, the first respondent’s solicitor, summarised the submissions on his application as follows:

“On 12 May we filed this application… We have not received sorry, any lay witness evidence. In the meantime, we have not received any applications for expert evidence. Our position is [that] without expert evidence and without lay witness evidence … the Claimant will not be able to discharge the burden of proof and that lends itself to a summary judgment application. The Claimant having no evidence, she cannot succeed and there is no other good reason why it should be disposed of at trial. We say that today there should be a Debarring Order against witness evidence and that summary judgment should be made. That is in respect of the evidential points.

In the alternative, if the Judge is minded to give some form of allowance to the Claimant to remedy this, a very, very short Unless Order – I would suggest seven days – with the same sanctions applying: that, if that evidence is not filed within seven days, the claim be summarily judged or, at the very least, we list a new hearing for summary judgment application, which I suspect we would be successful on.

…

Because the Claimant had not contested the Will. If this claim is summarily judged she will have lost her, her challenge to the Will. There being a defeated challenge to the Will the no contest clause must surely take effect. There are, obviously, various consequential orders which come as a result of that, not least how we deal with the property, which should then be returned to the estate. But we submit that on that, on that basis there is, there is no reasonable prospect of her defending the no contest clause. She has contested the Will, she has failed the contest clause, the, the no contest clause in the Will takes effect to, essentially, omit her from, from benefit from the estate. And, of course, we, we seek costs on, on the indemnity basis for the reasons set out in my, in my skeleton argument.”

In response, Mr Juss submitted that the shortcomings of Mrs Bibi as litigation friend ought not to be visited upon the appellant. He further submitted that Mrs Bibi had made genuine efforts to assemble evidence, albeit that she had been unsuccessful, and pointed to her communication on 22 April 2025, which (he said) showed that she was not acting in disregard of the court process but was simply labouring under difficulties. He said:

“If the Court’s view is that really that is no excuse, she ought to have been able to comply, then I urge the Court, I submit that really, with myself now coming on board, if an Unless Order could be made and that some flexibility could be shown so that we can now get this, you know, absolutely up and running, get our act in order, then that would avoid the worst case scenario being visited upon the Claimant.”

When pressed by the Judge, Mr Juss said that, though he had not discussed timescales with Mrs Bibi, a period of two to three weeks for the production of witness evidence would permit the trial date to be kept. The Judge then pressed Mr Juss on the question of expert evidence and did not, so far as I can see from the transcript, get any answer that was properly on point. Indeed, Mr Juss did not seem to be very clear then, nor was he very clear when I asked him about expert evidence on the appeal, as to the issues to which expert evidence might go.

After the hearing had been going for about an hour, there was a break while the Judge dealt with another matter; she invited Mr Juss to use the time to take instructions. After that short adjournment, and at the request of Mr Juss, the Judge allowed Mrs Bibi to address the court (transcript, pages 34ff). Mrs Bibi said that this was the first time she had acted as a litigation friend and that, with the difficulties of the case and some health problems of her own, she felt “out of [her] depth” and felt that she could no longer give the commitment the role required: “I am actually requesting to be removed as a Litigation Friend”. This led to prolonged discussion about the potential consequences of the removal of Mrs Bibi as litigation friend. The Judge then said:

“I have to say it is, it, it is difficult, Mr Juss, to not infer from the chronology of events up to and including this moment that the Claimant and/or Ms Bibi are not simply acting in an attempt to frustrate the proceedings. Because what was discussed before the break, Mr Juss, was for you to obtain instructions from Ms Bibi so that the Court understands the chronology of what led the Claimant to fail to engage with the directions, because one of the alternative limbs to the

Defendant’s application is for there to be an Unless Order. And we went as far as discussing, Mr Juss, the possibility of an Unless Order in terms that lay witness evidence is filed and served say 21 days from today etc. And then what to do with expert evidence, if indeed the Claimant is, is minded to rely on any expert evidence at all. And then we come back 45 minutes later or there or thereabouts to a request from Ms Bibi that she no longer consents to act as a Litigation Friend. Which will, ultimately, bring about what the Claimant or Ms Bibi sought in their latest application which is a period of time where there can be no effective case management of this hearing [or] of these proceedings. Astonishing, is it not, Mr Juss?”

A little later the Judge returned to the possibility of making an “unless” order (transcript, pages 47ff). The discussion, as it reads from the transcript, is rather disjointed at this point, but I think that a fair summary of the position is as follows. When asked whether he would agree to this alternative disposition, Mr Murphy said that he would object to any extension of time for expert evidence and would object to as long a period as three weeks for witness evidence. It is clear that, at that point, Mr Murphy was envisaging the ability to keep the trial date of 11 August 2025. The Judge then suggested that this was unrealistic, because of the need to identify and approve the appointment of a replacement litigation friend. Mr Murphy then said:

“I am reluctantly sensible to the fact that there is a procedural step that needs to take place before that [viz. the filing of witness evidence]. There is an application which needs to be heard – the approval of a Litigation Friend who is proposed needs to be approved by the Court. I do not know when that is going to happen in the timetable, but presumably we will need to come back before you once more, and then it will be for that Litigation Friend to file evidence.

Now, I agree, probably, that on the timetable August is looking extremely unlikely. That puts the Defendants at further cost, further procedural unfairness through no fault of anyone’s other than the Claimant. And I remind the Court again that this is their claim; we are now bending over backwards to defend a claim that we do not want to have to defend because we do not think it has any merit, because at the moment it has no evidence and it has no expert evidence. We are on the eve of the PTR, two days away. The Court is expecting this claim now to be ready for trial.

…

So what this is, is it is giving the Claimant another opportunity, and I am going to use the phrase again, to kick the can down the road. They will be delighted with this. And the only people who suffer as a consequence are the Defendants and the Court. That is not proper case management. That is not proper administration of justice. That is not the parties assisting the Court in furthering the overriding objective. It flies in the face of all of that.”

Before giving judgment, the Judge raised the question of the Part 8 proceedings. Mr Murphy very properly observed that the appellant had filed evidence in those proceedings. The Judge then observed that she had been minded to make a debarring order and grant summary judgment, but that the fact that proceedings would continue, and the need to address the substitution of the litigation friend, gave her pause. I do not need to set out details of the further discussion here.

The Judge’s order (the judgment is considered below) recited that she had “rais[ed] concerns about Dr Prasad’s qualifications, but notwithstanding [was] satisfied as to the Claimant’s lack of capacity to conduct litigation”. It recited also that the appellant had failed to comply with the directions order in that she had failed to serve any witness statements by the deadline of 23 April 2025 “or at any time since that date”, and that she had made no application for permission to rely on expert evidence within the time permitted for doing so.

The operative parts of the order provided in part:

“1.

Safina Bibi, the Litigation Friend for the Claimant, is permitted to withdraw from her role from the conclusion of this hearing.

2.

The Claimant’s application for a stay in proceedings, relief from sanctions, an extension of time, and the removal of the First Defendant as executor of the Estate of Kantaben Ratilal Patel is dismissed.

3.

The Claimant is debarred from relying upon the oral evidence of any witnesses at trial save that she is permitted to rely upon oral evidence of herself strictly limited to those matters contained within her witness statement of 10 May 2024 made in the First Defendant’s Part 64 Claim dated 14 February 2024 (‘the Part 64 Claim’), and is further debarred from applying for permission to rely upon expert evidence in support of her claim dated 5 July 2024 and Particulars of Claim dated 19 July 2024 (together ‘the Validity Claim’).

4.

The Claimant being debarred from relying upon oral evidence of any witnesses at trial which relates to the Validity Claim and from applying for permission to rely upon expert evidence which relates to the Validity Claim, the Validity Claim shall be summarily judged in its entirety as follows:

a.

The grant of probate dated 4 January 2021 in favour of the First Defendant shall continue;

b.

The claim against the validity of the will dated 29 July 2020 shall be dismissed and accordingly there be no pronouncement in favour of the will dated 29 June 2020;

c.

The claim seeking an order for an inventory and account against the First Defendant shall be dismissed;

5.

The Claimant having brought an unsuccessful challenge to the July 2020 Will, paragraph 2(c) of the Part 64 Claim as amended by way of Amended Details of Claim dated 25 February 2025 shall be summarily judged as follows:

a.

Clause 7 of the July 2020 Will operates to exclude the Claimant from benefitting from said will and the First Defendant shall interpret the said will and administer the Estate as though the Claimant had not been listed as a beneficiary. The gifts to the Claimant listed in said will shall instead form part of the residue of the Estate which shall pass to the Fourth Defendant pursuant to Clause 6 thereof;

b.

The property at [address] referred to throughout the claims (‘the Property’) shall be sold as part of the administration of the estate and the proceeds of sale use to discharge the outstanding and future liabilities of the estate, including for the avoidance of doubt the First Defendant’s costs and any further liabilities which arise as a result of the Part 64 Claim, as follows:

i.

Within 28 days of the date of this order the Claimant shall give up possession of the Property to the First Defendant;

ii.

The First Defendant shall have conduct of the sale and shall be entitled to conduct the conveyancing himself or instruct another firm of solicitors or conveyancers, at his discretion, and an estate agent familiar with the locality of the Property;

iii.

The sale shall be at such price and on such terms as advised to the First Defendant by the said agent;

iv.

The Property be vested in the First Defendant pursuant to section 47 of the Trustee Act 1925;

v.

Should the Claimant make a claim to any equity in the Property which has arisen since or as a result of the legal title to the Property being transferred to her, she is to provide evidence and calculations to the First Defendant by no later than 16:00 on the date 14 days after completion of the sale. If the Claimant provides such evidence and calculations and the parties cannot agree on a figure which represents the Claimant’s equity in the Property any party shall have permission to apply to the Court for a determination without the need to bring fresh proceedings. The First Defendant shall not distribute any funds to any beneficiaries out of the net sale proceeds until after either (1) 16:00 on the date 14 days after completion of the sale if the Claimant fails to provide evidence and calculations of her claimed equity or (2) the parties agree or the Court determines what figure, if any, represents the Claimant’s equity if the Claimant does provide evidence and calculations of her claimed equity;

vi.

Out of any agreed or determined equity figure referred to in the sub-paragraph above, the First Defendant shall be entitled to retain out of that figure any sums of money which the Claimant owes to him and/or to the Estate, including under any costs orders, and shall thereafter distribute the balance to the Claimant as part of the administration process;

vii.

The parties shall have permission to apply to the Court in respect of the conduct of the sale of the Property.

…

9.

The First Defendant’s costs of and occasioned by this application shall be payable by the Claimant and the Litigation Friend – jointly and severally – on the indemnity basis, summarily assessed in the sum of £7,829.20, payable within 14 days of the date of this order.

10.

The First Defendant’s costs of and occasioned by those parts of the claim which have been summarily judged by this Order shall be payable by the Claimant and the Litigation Friend – jointly and severally – on the indemnity basis, such sum to be subject to detailed assessment if not agreed.”

The outstanding issues on the Part 8 claim were to be tried on 11 and 12 August 2025. However, pursuant to orders of His Honour Judge Jarman KC dated 31 July 2025 and of Mr Justice Michael Green dated 8 August 2025, the remaining proceedings under Part 8 and the implementation of the summary orders already made in those proceedings are stayed pending determination of the appeal proceedings.

I have considered the entirety of the transcript of the Judge’s judgment but here refer only to select passages. The Judge recorded counsel’s submission that the entry of summary judgment “would be disproportionate [and] draconian” and would deny the claimant, a protected party, the opportunity of engaging in the proceedings as she fully intended to do (paragraph 16) and that “the reasonable and proportionate approach would be for an Unless Order to be made permitting the Claimant a further two or three weeks to file and serve any witness statements and any application to rely on expert evidence. To deny the Claimant that opportunity would be to treat a vulnerable party unfairly and to prejudice her for matters that were not in her gift to pursue” (paragraph 25). In a key part of her judgment, the Judge said:

“17.

In so far as the reasons for the failures to comply with directions, despite the Court giving both Mr Juss and Ms Bibi a number of opportunities, including a break of some 35 minutes so that Mr Juss can seek instructions, Mr Juss was unable to advance before the Court, nor did Ms Bibi, any adequate explanation that there has been a complete failure to prosecute the Claimant’s case.

18.

Mr Murphy reminds the Court that not only was there an expectation that there may be a statement from the Claimant, albeit that would not be necessary given that she is a protected party, that at the previous hearing counsel for the Claimant instructed on that occasion informed the Court that there were another five lay witnesses upon whom Ms Patel sought to rely. Ms Bibi could have, notwithstanding Ms Patel’s deteriorating health, obtained statements from them.

19.

There has been no explanation put before the Court by Ms Bibi as to why she was unable to do that. When asked Mr Juss simply replied that the Claimant and her Litigation Friend put all their eggs in one basket in relying on the medical report of Dr Amrita Prasad of 21 May, which purportedly confirms that Ms Patel remains unfit to participate in litigation and that the Claimant’s diagnosis includes complex PTSD, depression and suicidal ideation triggered by litigation activity.

20.

I did explain at the outset of the hearing to all parties that in light of the concerns I had in respect of Dr Prasad’s most recent report that the Court undertook some checks on the General Medical Council’s website which confirmed, alarmingly, that Dr Prasad is, in fact, not a consultant psychiatrist but is a GP, against whom there are sanctions in place where she has given undertakings to the General Medical Council some years ago that she would not work as a general practitioner in the United Kingdom.

21.

Dr Prasad’s qualifications, in so far as there are any, do not identify any level of expertise in psychiatry or mental health, indeed they relate to pharmaceutical medicine and the speciality of obstetrics and gynaecology. Nothing that would assist Dr Prasad in making the conclusions on Ms Patel’s various mental health disorders.

22.

However, when those matters were ventilated in court Mr Murphy, helpfully, confirmed to the Court that it is likely, on the evidence before the Court, that an alternative expert, if appointed, would reach the same conclusion. On that basis, none of the Defendants were seeking to challenge that Ms Patel remained a vulnerable individual and required the appointment of a Litigation Friend.

23.

On that basis, the Court was satisfied that the application and the hearing of the application could proceed today and, as I have indicated already, Mr Juss was able to advance, as best as he could in the circumstances, submissions against the making of any Debarring Order or the entry of summary judgment.

24.

Ms Bibi has, of course, as well, in addition to the oral submissions, provided a witness statement, a detailed skeleton argument with reference to multiple authorities in respect of whether the Court should consider a stay or relief from sanctions, has provided the report of Dr Prasad as well as other enclosures comprising some 500 pages, prior to today’s hearing.”

At paragraph 26 the Judge recorded that, after the short adjournment to enable Mr Juss to take instructions, Mrs Bibi informed the court that, contrary the express confirmation she had already given to the Judge earlier in the hearing as recorded at paragraph 10, she was “unaware of what the full extent of her duties were [sic] as a Litigation Friend, that she had previously only acted as a McKenzie Friend, that she has personally suffered difficult medical issues over the last few months and on that basis no longer gives her consent to act as a Litigation Friend.” Thus the Judge gave Mrs Bibi permission to withdraw after the hearing: see paragraph 1 of the order. However, in the context of the appellant’s application for permission to appeal at the end of the hearing, the Judge made clear that she viewed Mrs Bibi’s late protestation to be “in over her head” as one that “[did] not bear scrutiny”: see paragraphs 51 to 55 of the judgment.

The Judge’s reasoning on the applications is set out in the following passage of her judgment.

“36.

In so far as the application for the Debarring Orders are concerned, I am satisfied, in light of the evidence of the ongoing failure of the Claimant and her Litigation Friend to engage with any of the directions set out in the order of 3 March that it is reasonable and proportionate that the Claimant, at this stage in the proceedings, is debarred from relying on any lay witness evidence.

37.

Secondly, [she] no longer has permission to rely on any expert evidence in support of her validity claim. I am satisfied, in light of those orders, that the Court can only reach the conclusion that the Claimant’s claim has no prospects of success such as to warrant or justify the entry of summary judgment in accordance with CPR part 24.

38.

I am satisfied that the Claimant, in the absence of any evidence to provide [scil. prove] her claim, will simply be unable to discharge the burden of proof. I am also satisfied, under 24.3(b), that there is no other compelling reason why the case should be disposed of at trial. I am therefore satisfied that the appropriate order is, in respect of the validity claim, that there is judgment for the Defendants and the claim is dismissed.

39.

In so far as the no contest clause, the Defendants are entitled to rely on that clause on the basis that the Will before the Court is valid and, accordingly, the Claimant is not entitled to benefit from the Will of the deceased.

40.

I accept the submissions on behalf of Mr Murphy that awaiting the trial in August for a matter that does not relate to all of the same parties would not be proportionate or in accordance with the overriding objective, particularly in circumstances where the Court has reached the findings and conclusions it has in respect of the Claimant’s conduct in these proceedings.

41.

For the avoidance of any doubt, I dismiss all of the Claimant’s applications for relief from sanctions, for a stay and for any other consequential orders. In applying the three stage Denton test in respect of the Claimant’s application for relief from sanctions, I am satisfied that the breaches were serious, that no explanation has been advanced before the Court.

42.

In so far as the reliance made by the Claimant that she was suffering with continued deterioration of her mental health and was unable to give instructions that is a reason that simply does not bear scrutiny. The very appointment of a Litigation Friend was on the basis that the Claimant was unable to give instructions.

43.

The Litigation Friend had responsibilities and duties to advance the Claimant’s case in accordance with her best interests and has entirely failed to do so and has failed in any way to correct those errors by making appropriate applications prior to the deadlines being met.

44.

In looking at all the circumstances of the case in so far as the third stage is concerned, I am satisfied that the prejudice to the Defendants far outweighs any prejudice to the Claimant at this point in time and that any further possibility of granting any further latitude or discretion to the Claimant, as sought, would impact upon the trial date and would put the Defendants to such significant incurring of further costs and delay in respect of a matter that ought to have been resolved many, many months ago.

45.

For those reasons I am not satisfied that any further delay is justified as the Claimant attempts to advance in her submissions. The directions would also include a direction that all of the Claimant’s applications are dismissed.

46.

I consider that the Claimant’s further attempt to apply for a stay, which was refused at a hearing before the Court in November, is simply an attempt to frustrate the proceedings and to provide justification for the Claimant’s ultimate position, which is for her to remain in a property which, arguably, she is not entitled to remain in, to the detriment of all of the named Defendants.”

In the event, and despite what she had said to the Judge, Mrs Bibi did not withdraw as the appellant’s litigation friend. She continues to act in that capacity; indeed, she has done so with considerable vigour.

I mention briefly some recent steps in the appeal proceedings.

The appellant advances five grounds of appeal, which in summary are as follows.

In giving permission to appeal on the papers, Mr Justice Michael Green said:

“1.

The issues before the Judge at the hearing on 30 May 2025 centred on the medical evidence concerning the Appellant’s mental health situation and whether that meant that she was not then in a position to deal with this litigation and give instructions to her Litigation Friend, Ms Safina Bibi. That evidence was also adduced to explain why there had been non-compliance with various court orders in relation to the serving of lay witness evidence and expert evidence.

2.

The medical evidence was from Dr Amrita Prasad but the Judge largely rejected that evidence because of doubts about Dr Prasad’s expertise that the Judge herself raised as a result of her own investigations. The Judge did accept the diagnosis of Dr Prasad insofar as it indicated that the Appellant did not have capacity and required a Litigation Friend. But she seemed not to place any weight on Dr Prasad’s wider conclusion that the Appellant was ‘actively suicidal’ and that she was exhibiting a ‘high risk of psychiatric misadventure or completed suicide if proceedings continue’. The Judge’s finding as to Dr Prasad’s reliability seemed to shape her judgment on the issues before her and I am concerned that the Judge felt able to make some harsh debarral orders that led to the Appellant effectively being unable to challenge the 29 July 2020 Will of the deceased, her mother, as against the Will made a month earlier on 29 June 2020. The Order grants summary judgment in favour of the later Will and the probate granted to the First Respondent as a result, which means that the case has been decided against the Appellant without her having the opportunity of a trial on the merits and as a result of an arguably disproportionate debarral order being made there and then.

3.

The Judge’s conclusion in relation to Dr Prasad was arguably unfair and incorrect. As I have said, I think that conclusion had consequences for the rest of the Judge’s judgment and the orders that she made. It may turn out to be justified, and I am not pre-empting the outcome of the appeal, at which the Respondents will be able to put their case in answer fully. But at this stage, I am satisfied that the Appellant has crossed the low threshold of showing that she has a real, rather than fanciful, prospect of success on her appeal. I therefore grant permission to appeal on all grounds.”

The appeal raises considerations of two different kinds. The decisions (i) not to stay the proceedings and (ii) not to give the appellant further time to serve evidence were exercises of the Judge’s discretion. On appeal, this court is entitled to interfere with those decisions only if the Judge made an identifiable error of law or if the decisions were not ones that the Judge could reasonably have made. The decision to grant summary judgment against the appellant, on the basis that her Part 7 claim could not succeed in the absence of witness and expert evidence, was not an exercise of discretion; on appeal, this court is entitled to set aside the judgment if it considers that, despite the absence of witness and expert evidence, the Part 7 claim had a realistic (as opposed to a merely fanciful) prospect of success.

CPR r. 3.1(2) provides in part:

“Except where these Rules provide otherwise, the court may—

(a)

extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);

…

(g)

stay the whole or part of any proceedings or judgment either generally or until a specified date or event; …”

I address first the Judge’s decision to refuse a stay of proceedings. This is the focus of ground 1 of appeal, though in fact it played relatively little part in argument before me. Although I deal with it first, in doing so I have regard to the matters considered below in connection with the further decision not to grant relief from sanction. The complaint is that, in refusing a stay, the Judge placed no weight on Dr Prasad’s opinion that the continuation of proceedings presented an immediate and serious threat to the appellant’s mental health and, indeed, to her very life.

In my judgment, the Judge was entitled to refuse a stay of proceedings. I do not consider that she made any identifiable error or reached a conclusion that was not reasonably open to her. Anyway, if it fell to me to exercise my discretion afresh in this regard, I should do so in the same way and refuse a stay.

It appears from the Judge’s judgment that there were three matters of particular relevance to her consideration of the application for a stay. The first was her conclusion that the appellant and Mrs Bibi were engaged in an ongoing attempt to frustrate proceedings; see, in particular, paragraph 46 of the judgment. The second was her scepticism about the value of Dr Prasad’s reports. The third, and most straightforward, was the interest of all other parties in having a prompt determination of the proceedings.

The Judge’s assessment of the conduct of the proceedings by the appellant and Mrs Bibi was, in my view, one that she was entitled to make. Mrs Bibi showed herself perfectly capable of making applications and creating and filing voluminous documentation when it suited her, as well as of instructing (several) counsel and Dr Prasad. Further, it is clear that the Judge was deeply unimpressed by Mrs Bibi’s volte face in the course of the hearing as regards her position as litigation friend. The Judge did not accept that Mrs Bibi had previously not understood her obligations or that she felt out of her depth; rather, she viewed this as a tactical device by which to achieve the delay that could not be achieved by other means. Not only was this a reasonable inference on the facts as they then appeared; it is reasonable to think that it has been borne out by the fact that Mrs Bibi has subsequently not withdrawn as litigation friend but has pursued this appeal and the applications made within it. (Mrs Bibi has subsequently explained her decision to withdraw as having been made in circumstances where she “felt pressurised and, in effect, bullied into stepping down due to the conduct and attitude [she] experienced during the hearing”. I am not inclined to accept this as plausible.) The judicial obligation of fairness did not require the Judge to be naïve.

The Judge properly considered Dr Prasad’s reports not in isolation but in the context of the conduct of the proceedings by the appellant. I do not consider that there was anything wrong with the Judge’s approach to Dr Prasad’s reports. They are, on their face, highly unusual documents for a consultant psychiatrist to have prepared, containing neither professional contact details nor any indication of where Dr Prasad was working. The Judge was entitled, in that context and on the basis of matters of public record and common knowledge, to be dubious of Dr Prasad’s qualification to express detailed expert opinions on the matters dealt with in her reports. It was well within the proper scope of the Judge’s discretion to consider that the reports and Mrs Bibi’s evidence provided an unpersuasive case for a stay of proceedings. With respect, I agree with the Judge’s view.

I turn to consider the Judge’s refusal to grant relief from sanctions and an extension of time for producing evidence. CPR r. 32.10 provides:

“If a witness statement … is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.”

That rule is reflected in paragraph 9(b) of the directions order made by the Judge after the case management conference: see paragraph 32 above. Again, CPR r. 35.4(1) provides:

“No party may call an expert or put in evidence an expert’s report without the court’s permission.”

In these proceedings, no permission has ever been given for a party to rely on expert evidence. Paragraph 10 of the directions order provided that any application for such permission must be made by 30 April 2025. No such application has ever been made.

In Chartwell Estate Agents Ltd v Fergies Properties SA [2014] EWCA Civ 506, the Court of Appeal held that the giving of permission under r. 32.10 was not a matter of a free-standing discretion but required application of r. 3.9(1), which provides:

“On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need—

(a)

for litigation to be conducted efficiently and at proportionate cost; and

(b)

to enforce compliance with rules, practice directions and orders.”

In my judgment, any application to adduce expert evidence in these proceedings after the expiry of the time-limit in paragraph 10 of the directions order would, likewise, require an application for relief from sanction.

The manner in which r. 3.9(1) is to be applied was explained by the Court of Appeal in Denton v TH White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3296. In brief, an application for relief from sanction falls to be considered by means of a three-stage test. The first stage is to assess whether the failure to comply is serious or significant (there being, of course, different degrees of seriousness and of significance). If the failure to comply is neither serious nor significant, relief from sanction is likely to be granted; the second and third stages will rarely be of much relevance. The second stage is to examine why the failure occurred and whether or not there was a good reason for it. If there was a good reason for the failure, relief from sanction is likely to be granted. The third stage is to consider all the circumstances of the case, so that the application can be determined in a just manner. At this third stage, the two factors identified as (a) and (b) in r. 3.9(1) are of particular, albeit not of overriding, significance.

The Judge expressly directed herself in accordance with the three-stage test in Denton; see paragraph 41 of the judgment. As to the first stage, she held that the “breaches” (namely, the failure to serve witness statements or make an application in respect of expert evidence within the specified times) were serious. This was clearly correct. By the time of the hearing on 30 May 2025, the times for serving witness statements and applying for permission for expert evidence had elapsed by a full month and the appellant had not sought to rectify matters. The pre-trial review was imminent and the five-day trial was only a little more than two months away.

As to the second stage of the Denton test, the Judge considered that no proper reason had been shown for the appellant’s failures. This, too, was clearly correct. Two matters were relied on by the appellant: her own poor mental health, and Mrs Bibi’s unexpected inability to discharge the responsibilities of a litigation friend. The Judge did not consider either explanation credible, and nor do I. As the Judge observed, the appellant’s incapacity was the very reason why a litigation friend was appointed. As for Mrs Bibi, while she would not have been competent to act as a legal representative, she was clearly competent to act as a litigation friend, a role for which no qualifications or aptitude are required beyond those that are possessed by litigants in person generally. The difficulty with Mrs Bibi, as it seems to me, is that, as is not infrequently the case with unrepresented parties but less commonly so with litigation friends, she has too much tried to be an amateur lawyer and—as the Judge clearly thought and as I think, too—has tried to play the system to her own (or, more accurately, the appellant’s) advantage. That the appellant has been disadvantaged by Mrs Bibi’s conduct as litigation friend may well be a matter to be taken into account at the third stage of the Denton test, but in my judgment the Judge was correct to think that it did not provide a good reason for the failure to comply with the case management timetable.

The focus of the appeal against the Judge’s exercise of discretion, as it appears from the grounds of appeal and more especially from Mr Juss’s submissions, concerns the third stage of the Denton test. I think that the argument can be summarised briefly in this way. When assessing all the circumstances of the case, the Judge was unjustifiably dismissive of Dr Prasad’s evidence and professional standing; she failed to have proper regard to the real difficulties caused by the appellant’s inability to give proper instructions; she disregarded evidence that the continuation of proceedings was actively harmful to the appellant’s health and threatening to her very life; she was unnecessarily harsh, unfair and hostile towards Mrs Bibi—to the point of giving the appearance of bias; and she adopted a course that was unreasonably draconian. By debarring the appellant from adducing oral evidence save that of herself on matters contained in her statement in the Part 8 proceedings, the Judge (at least on her own understanding, as shown in the summary judgment that she granted) left the appellant unable to challenge the July Will—and, it might be added, left the appellant with the consequences of clause 7 of the July Will, which would deprive her of all benefit under that will. The Judge made this decision despite the facts that the Part 8 proceedings were still going to trial and that there was reasonable ground for suspicion over the validity of the July Will. In the circumstances, the Judge ought to have made an “unless” order, granting a short period of time for the appellant to put her house in order.

The matter has been approached before me on the basis that the Judge was wrong not to give a short extension of time for serving witness statements and applying for permission to adduce expert evidence. The key arguments for saying that an extension ought to have been granted are that the appellant was in a poor state of mental health, that she had been ill-served by her litigation friend, and that the consequences of a debarring order were draconian, in that they effectively closed off what was prima facie a plausible challenge to the July Will. There is no doubt that the Judge’s decision was robust; I am less sure that it was “harsh”, as Mr Justice Michael Green suggested. In my view, in refusing an extension of time, the Judge had regard to all relevant matters and her evaluation of each of them was within the scope of what was permissible. Once the Judge had decided, as she was entitled to do, that there should not be a stay of proceedings and that Dr Prasad’s evidence did not indicate a good reason for the failure to comply with the case management directions, Dr Prasad’s evidence was not of particular significance at the third stage as regards an extension of time, in the sense of an opportunity to produce witness statements at some later date, because it did not indicate that a short extension would achieve anything. There are, I think, three matters in particular that justified the Judge in the approach she took regarding an extension of time. First, there was the interest of the other parties to the litigation; see paragraph 44 of the judgment. Second, there was the Judge’s conclusion that Mrs Bibi’s non-compliance with the case management directions had been for the purpose of frustrating the proceedings and, so to speak, buying time for the appellant; this was a conclusion reasonably open to the Judge and was relevant both generally and, specifically, as regards factors (a) and (b) in r. 3.9(1). Third, there was the “astonishing” (cf. transcript, pages 39 and 40) development in the course of the hearing concerning Mrs Bibi’s willingness to act as litigation friend. As the matter was presented to the Judge, any possibility of granting a short extension of time, so that evidence would be served quickly and the case could proceed to trial, was precluded by the need to find and appoint a new litigation friend. The Judge understandably did not feel that she could force Mrs Bibi to continue to act against her will; at page 43 of the transcript, she adverted to the note at para 21.7.2 of Civil Procedure, to the effect that exceptional circumstances would be required to compel and unwilling litigation friend to continue in office. Therefore the grant of a short extension of time would not be a realistic option. The transcript shows that both Mr Murphy and the Judge thought that the court was, in the colloquialism, being “played”.

I have, however, come to the view that there was another course open to the Judge, which does not appear to have been suggested to her or considered: that is, to direct that the particulars of claim in the Part 7 claim stand as the appellant’s witness statement. Of course, that is not ideal. But the particulars of claim do set out the main points of the factual case she has been advancing (along, of course, with non-factual material). That is the factual case to which the respondents will have been required to respond in their witness statements concerning the validity of the July Will. The particulars of claim are signed by the appellant and verified as to the facts they aver by a statement of truth. They were prepared at a time when it is to be supposed that she had the capacity to litigate that she apparently lacks now. Whatever view be taken of Dr Prasad’s qualifications, her reports do provide factual confirmation of the difficulties that the appellant now has in giving a coherent account, such as would be required for the making of a witness statement. In conjunction with the fact that the particulars of claim do provide such an account, this feature of Dr Prasad’s evidence is important.

As the possibility of directing that the particulars of claim stand as a witness statement was not considered in the exercise of the Judge’s discretion (which is no fault of hers), I am able to consider it and to adopt it in the exercise of my own discretion. It represents something of an indulgence to the appellant. However, it seems to me to be a course that would have occasioned no material prejudice to the respondents, would not have introduced new material, would have enabled the trial date to be kept for a hearing of all issues (when it was anyway to go ahead on other issues), and would have avoided the rather stark, and possibly harsh, result of summarily disposing of the appellant’s challenge to the July Will and, moreover, leaving her with the consequences of clause 7 of that will. Further, while I agree with Ms Bloomfield’s submission that a litigation friend is required to comply with rules and orders in the same way as represented and unrepresented parties, it does not follow that the fact that the conduct is that of a litigation friend is necessarily entirely irrelevant when it comes to the assessment at the third stage of the Denton test. The course I adopt has the happy by-product that the appellant, who is accepted to lack capacity to litigate, is saved from the worst possible consequences of the actions and inaction of a litigation friend who has tried to be too clever by half.

In the circumstances, I shall set aside paragraph 3 of the Judge’s order and replace it with the following paragraphs:

“3.

The Claimant’s Particulars of Claim dated 19 July 2024 do stand as her witness statement in the Part 7 claim.

4.

For the avoidance of doubt, the Claimant is entitled to rely on witness statement of 10 May 2024 made in the First Defendant’s Part 64 Claim (‘the Part 64 Claim’) in the Part 64 Claim.

5.

In the event that the Claimant is unable to give oral evidence at trial (or otherwise in the discretion of the trial judge), she may rely on her said Particulars of Claim and upon her said witness statement of 10 May 2024 as hearsay evidence in the consolidated proceedings.

6.

The Claimant is debarred from relying upon the oral evidence of any witnesses at trial other than herself.

7.

The Claimant is further debarred from applying for permission to rely upon expert evidence at trial.”

I make two observations on these substituted provisions.

In the light of these conclusions, the summary judgment given by the Judge cannot stand, and paragraphs 4 and 5 of her order will be set aside.

It is, accordingly, not strictly necessary to say anything further on the appeal against the order for summary judgment. However, I shall very briefly explain why, if I had been of a different opinion regarding the Judge’s exercise of her discretion, I would nevertheless have set aside the summary judgment and given the appellant the opportunity to pursue the Part 7 claim.

First, the Judge’s debarring order did not actually preclude an application to rely on the particulars of claim as hearsay evidence. The factors that have led me to the view that the particulars of claim ought to be permitted to stand as a witness statement would also justify such an application. Once that is appreciated, the debarring order does not have the necessary consequence identified by the Judge.

Second, regardless of the foregoing point, there was just about enough in the available evidence to conclude that the prospect of success on the Part 7 claim was not merely fanciful (which is not to say that there was enough to show the prospects to be good). I make the following observations pertaining to facts relevant or potentially relevant to the validity of the July Will.

Third, CPR r. 24.3 provides that the court may give summary judgment against a party only if “(a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.” I accept that the word “compelling” in condition (b) is deliberately restrictive. However, in the unusual circumstances of this case, and where matters relating to the loans from the second respondent to the Deceased (being matters raised in connection with the Part 7 proceedings) were shortly to go to trial and where the postponement of determination of the Part 7 claim until that trial would neither occasion significant delay nor materially affect the likely duration of the trial, I should have considered that there was a compelling reason why any adverse determination of the probate claim should be made at trial and not in consequence of a markedly robust exercise of case management powers.

Mr Juss did not seek to challenge the appropriateness in principle of making an adverse costs order against the appellant and Mrs Bibi in respect of the first respondent’s application. Such an order was obviously one that the Judge could reasonably have made, and Mr Juss did not object to the order: see paragraph 58 of the judgment. I do not consider that the varied order indicated above affects the proper incidence of costs on the first respondent’s application.

I infer that Mr Juss’s submissions, taken as a whole and in the context of the fifth ground of appeal, implied an objection to the making of a costs order on the indemnity basis of assessment; though in fact he did not expressly make any submissions to me in that regard. To the Judge, Mr Juss submitted that assessment ought to be on the standard basis, because Mrs Bibi’s failings were not the fault of the appellant. The Judge said:

“59.

The obvious response to that is that on the appointment of a Litigation Friend the Litigation Friend and the Claimant are, effectively, treated by the Court as one and the failings of Ms Bibi are the failings of the Claimant and vice versa.

60.

In light of my findings and the judgment setting out the failures and continued failures of the Claimant to prosecute her own case, I am satisfied that it is appropriate for the Claimant to pay D1’s costs on the indemnity basis. I do so bearing in mind the considerations under CPR 44.2 and the authorities to which Mr Murphy refers the Court to in his skeleton argument at paragraph 34.”

The principle applied by the Judge was that the court has a power to assess costs on the indemnity basis where the conduct of the paying party takes the case “out of the norm”, by which is meant, broadly, that the conduct is unreasonable or improper to an extent that falls outside the scope of the proper conduct of litigation and calls for a mark of the court’s disapprobation. In my judgment the Judge was perfectly entitled to consider that the conduct of the appellant, through the litigation friend, justified an award of indemnity costs. Accordingly, paragraph 9 of the Judge’s order will stand.

However, paragraph 10 of the Judge’s order falls with the summary judgment on the Part 7 claim.

In the course of the appeal it has been suggested that the Judge showed either actual or apparent bias against Mrs Bibi and the appellant. I entirely reject that suggestion. The fact that a judge has made previous determinations adverse to a party is no indication of actual or possible bias. Nor is the fact that a judge forms adverse views of a party’s conduct and expresses those views firmly. The Judge did and said nothing on 30 May 2025 that could reasonably be understood to indicate a serious possibility that she was biased against the appellant or Mrs Bibi.

The appeal against the Judge’s refusal of a stay of proceedings is dismissed.

The appeal against the Judge’s refusal of an extension of time for serving witness statements and making an application for permission to rely on expert evidence is allowed to the extent that the appellant’s particulars of claim, verified as they are by a statement of truth, shall stand as her witness statement in the Part 7 claim and she may give oral evidence in respect of its contents or rely on it as a hearsay statement. Otherwise, this part of the appeal is dismissed.

The Judge’s order for summary judgment on the Part 7 claim is set aside, as is the consequential costs order in paragraph 10 of the Judge’s order.

The appeal against the costs order in paragraph 9 of the Judge’s order is dismissed.

This judgment will be handed down by email to the parties and release to the National Archives. I shall then adjourn the (non-attended) hand-down hearing to a date to be fixed, in order to give the represented and the unrepresented parties an opportunity to seek to agree the terms of the appropriate order. If a further hearing is required, it will be held by CVP.