Chambers v Rooney & Anor

Table of Contents:

Introduction and background

Mrs Chambers, a litigant in person, renews her application for an extension of time (“Mrs Chambers’s EOT application”) so that she can seek to appeal against parts of the order of Her Honour Judge Walden-Smith (“the judge”) at the County Court at Central London dated 17 October 2016 (“the October order”).

The matters dealt with in the October order had been argued at a hearing on 22 June 2016 (“the June hearing”). A judgment dated 25 July 2016 (“the July judgment”) set out the judge’s conclusions and reasons in relation to the matters argued at the June hearing. Those conclusions were given effect in the October order. The material parts of the October order are these:

1.

The Claimants application dated 25th May 2016 is dismissed

2.

The Claimant’s application dated 20th June 2016 is dismissed

3.

There be summary judgement for the First Defendant in respect of the allegations made in the following paragraphs of the Amended Particulars of Claim, and those paragraphs be struck out of the Amended Particulars of Claim:

a.

Paragraph 130 to 150

b.

Paragraph 163.2

c.

Paragraph 173.2 [the order stated “172.2”, but this was a slip: see paragraphs 24 and 65 of the July judgment]

d.

Paragraphs 174 to 185

e.

Paragraphs 196 to 203

f.

Paragraphs 204 to 217

g.

Paragraph 226.4

h.

Paragraph 238.2

i.

Paragraphs 239 to 259

j.

Paragraphs 264 to 274

k.

Paragraphs 292.2 and 292.3

l.

Paragraphs 294 to 305

m.

Paragraphs 329 to 338

n.

Paragraphs 339 to 346

o.

Paragraphs 369 to 399

…

For the avoidance of doubt, the prospect of the Claimant seeking permission to appeal and, if successful in obtaining permission, appealing my decision is not a reason for delaying preparation for trial.

Mrs Chambers explains the delay in lodging the papers by saying that the sealed October order was received on 22 October 2016 and an appellant’s notice was filed in good time on 11 November 2016. However the appellant’s notice and accompanying papers were returned due to defects in the paperwork. Unfortunately the letter from the Appeals Office in this regard, dated 21 November 2016, was lost in the post. When Mrs Chambers learnt of this in December 2016 the papers were collected by hand from the Appeals Office on 21 December 2016. The holiday period then intervened. The papers were filed on 5 January 2017.

When Mrs Chambers’s EOT application came before Mrs Justice Andrews for consideration on the papers it was refused. The grounds for refusal dealt in detail with numerous points raised by Mrs Chambers in support of the application. Mrs Justice Andrews ordered that any renewed application be heard no later than 28 February 2017. The reason was that the trial in the County Court is due to take place in March.

There is a common feature to all the complaints made by Mrs Chambers in these proceedings. It is that they all concern things done by an executor of an estate of a deceased person. If brought in the High Court, claims concerning the administration of such an estate are assigned to the Chancery Division: see CPR 64.1(3). In a further judgment dated 17 October 2016 (“the October judgment”) the judge said that any appeal should go to the Chancery Division of the High Court. I do not know how the present appellant’s notice came to be issued in the Queen’s Bench Division. If it were not for the imminent trial next month I would have transferred this matter to the Chancery Division.

The renewed application was listed to be heard before me on 15 February 2017. On that day Mrs Chambers attended with her husband, Mr Peter Michael Chambers. As is usual in renewed applications of this kind, there was no attendance on behalf of other parties.

Mr Chambers had been permitted to speak for Mrs Chambers at the June hearing. I permitted him to do so at the hearing before me. The skeleton argument on behalf of Mrs Chambers in support of the proposed appeal (“the appeal skeleton”) ran to 31 pages. In order to ensure that Mr Chambers had a full opportunity to explain all points sought to be made on Mrs Chambers’s behalf, I arranged for the hearing to continue during the morning of 16 February 2017. At the conclusion of argument I reserved judgment overnight. On 17 January 2017 I gave a short oral judgment giving a summary of my reasons for concluding that Mrs Chambers’s EOT application should be refused. In the present judgment I set out my reasons in full.

Mrs Chambers and the second defendant/respondent, Ms Wiles, are sisters. I shall refer to them together as “the sisters”. They are the daughters of Mrs Frances Bellew Levison (“Mrs Levison”).

The first defendant/respondent, Mr Rooney, is a solicitor and a partner in the firm Edward Oliver and Bellis (“the firm”). The last will and testament of Mrs Levison appointed two partners of the firm as executors and trustees of the will. The beneficiaries of her estate were the sisters in equal shares. A major asset of the estate was Mrs Levison’s home (“the property”), situated in the London Borough of Redbridge.

Mrs Levison died on 9 December 2004. A grant of probate dated 2 August 2005 identified Mr Rooney as the executor of her estate. It reserved power to act as executor to another partner of the firm.

Mrs Chambers’s amended particulars of claim (“the amended particulars”) begin with some introductory observations. The actual claims are 38 in number. They are set out under 12 heads, comprising 390 paragraphs and occupying 120 pages.

A summary of the amended particulars explains that Mrs Wiles is a defendant under CPR 64.4(c). Part 64 is the part of CPR which deals with estates, trust and charities. The claim was begun in the Chancery Division of the High Court and later transferred to the County Court. It was begun using the procedure specified in CPR 8 as required by CPR 64.3. However it was ordered to proceed under CPR 7 in October 2014.

The amended particulars were verified in a statement of truth by Mrs Chambers on 18 January 2016. For convenience I have numbered the heads and sub-heads of claim. As so numbered, they can be summarised in table format:

There is no suggestion that the October order brought an end to the case. On the contrary, 6 of the 12 heads of claim were, either entirely or substantially, unaffected by the October order. A comparison of paragraph 3 of the October order (see section A1 of this judgment) with the table above shows that:

The June hearing had been arranged so that points that needed to be decided well before the trial could be dealt with in an orderly way. This was an eminently sensible case management decision by the judge. Despite having ample notice of that hearing Mrs Chambers applied for it to be adjourned. The judge refused an adjournment.

There is, rightly, no attempt by Mrs Chambers to appeal against that refusal. The trial was fixed for 7 days in March 2017. Each side had made assertions that particular parts of the other side’s statement of case should be struck out. In accordance with the overriding objective it was important for the court, to the extent that it was just and proportionate to do so, to get on with working through these assertions. For reasons which I explain in the next section of this judgment, this course has particular value for the litigant in person.

Striking out heads of claim: value to a litigant in person

Striking out decisions can, among other things, bring to an end parts of a claim which are unsound in law. Parts of a claim with no real prospect of success can also be brought to an end by using the summary judgment procedure. Bringing to an end such parts of a claim can be of particular value to litigants in person. In the remainder of this section I explain why. When doing so I shall, for convenience, refer simply to striking out part of the claim. Such references, however, should be treated as being references to one or other or both of striking out of, or the grant of an adverse summary judgment on, part of the claim.

There is a real danger that litigants in person may press on with parts of a claim which seem to them to demonstrate how badly the other side has behaved but for which there is no legal basis. Similarly, there may be parts of the claim for which, despite the strong suspicions or firm belief of the litigant in person, there is plainly no factual basis.

It will generally be of great assistance for litigants in person if these parts of the claim are struck out. Of course any strike out application will have been made because the other side thinks that striking out will be in its interests. However where a strike-out application succeeds against litigants in person, or the court of its own motion strikes out part of a claim by litigants in person, then litigants in person have a benefit that they would not otherwise have received. The relevant part of the claim has been examined by the judge, and disposed of at an early stage.

Litigants who are represented have lawyers who can give them expert advice about the legal and factual merits of the case. Litigants in person often lack such advice. For litigants in person, a potential advantage of a strike-out decision against them is that it may, to an extent, remedy that lack. Among other things:

When parts of the claim are struck out the natural reaction of the litigant in person is disappointment. However the course to be taken by litigants in person – and indeed by litigants who are represented – is to stand back and review the case. For litigants in person, a decision striking out parts of the claim will generally be a clear indication that they have been fighting on too many fronts, and that they need to stop wasting time and energy on parts of the claim that are bound to fail.

A strike out decision can sometimes assist litigants in person in other ways. Well before trial all litigants need to review the case. Things that litigants in person need to have in mind are discussed in chapter 15 of the Handbook for Litigants in Person. All litigants in person should pay careful attention to what is said in that chapter. Particularly relevant for present purposes is section K of that chapter. In that regard:

The proposed grounds of appeal

The proposed grounds of appeal in the present case comprise two sections. Section A of the proposed grounds concerns paragraph 2 of the October order. Section B of the proposed grounds of appeal concerned paragraphs 1 and 3 of the October order.

Paragraph 2 of the October order dismissed Mrs Chambers’s application dated 20 June 2016. In that application Mrs Chambers said that the entirety of Mr Rooney’s defence should be struck out. As to why it should be struck out, the application noted that a witness statement made on behalf of Mr Rooney had referred to a compensatory payment of £500 (“the £500 compensation”) being made to Mrs Wiles as “a client”. It was said by Mrs Chambers in this regard that, Mrs Wiles being a client of the firm, Mr Rooney had a clear conflict of interest between his duty to Mrs Chambers as a beneficiary of the estate and his duty to Mrs Wiles as a client.

What I shall call grounds A1 to A3 complained that dismissal of the 20 June application was “wrong, unjust and not according to procedures defined in the Civil Procedure Rules” because:

A1. Procedural rules in respect of the hearing were not complied with and therefore the appellant was not heard.

A2. The decision to dismiss took into account the respondents’ arguments and took insufficient account of the appellant’s arguments.

A3. A written narrative judgement has not been provided by the Court therefore preventing proper consideration by the appellant for reasons for dismissal.

Grounds A1 and A2 do not identify the precise matters complained of. I have proceeded, in relation to those grounds, on the footing that the matters complained of are those identified in the appeal skeleton.

Paragraph 1 of the October order dismissed Mrs Chambers’s application dated 25 May 2016. In this application Mrs Chambers applied for an order striking out, or granting summary judgment in relation to, passages in Mr Rooney’s defence. Paragraph 3 of the October order granted some, but not all, of requests made in an application dated 27 May 2016 by Mr Rooney for striking out of, or summary judgment in relation to, certain passages in the amended particulars.

In what I shall call grounds B1 to B3 it was said that paragraphs 1 and 3 of the October order should be set aside as “various parts” of the July judgment were “wrong and unjust” because:

B1. In a number of instances the actual claim made has not been considered

B2. Representations relating to claims for ‘punitive damages’ were neither requested nor heard.

B3. Representations made by the appellant relating to defamation had not been taken into account. The judgement is factually wrong in many respects and is based on statements made by the respondent, with little account of the appellants’ arguments.

Grounds B1, B2 and B3 do not identify the precise matters complained of. Here, too, I have proceeded on the footing that the matters complained of are those identified in the appeal skeleton.

The structure of this judgment

At the outset of the hearing, I asked Mr Chambers to take me through the appeal skeleton. I took this course because, if I were to conclude that there was an arguable basis for the proposed appeal, then my inclination would be to look sympathetically at the request for an extension of time. Conversely, if I were to conclude that there was no arguable basis for the proposed appeal, then there would be no practical value in granting an extension of time, and in those circumstances it would be in the interests of all concerned to bring the proposed appeal to an end by refusing an extension of time.

Accordingly in the remainder of this judgment I examine the points advanced on behalf of Mrs Chambers as justifying an appeal. For the most part I take them in the order that they appear in the appeal skeleton. There are two topics, however, which it is desirable to discuss before turning to the remainder of the appeal skeleton. The first is dealt with in section E below. It concerns the £500 compensation. There are two aspects to this first topic. Section E1 sets out some background to these two aspects. The first aspect is dealt with in section E2. It concerns allegations about this payment that were made in sub-head 5.6 of the amended particulars, and were struck out by the judge: see paragraph 3.f. of the October order. In section E2 I discuss these allegations, and the proposed appeal against paragraph 3.f. of the October order. In section E3 below I consider the second aspect. This concerns the proposed appeal against paragraph 2 of the October order, dismissing Mrs Chambers’s 20 June application. That application was based on words used in a witness statement on behalf of Mr Rooney seeking to explain the £500 compensation.

The second topic is dealt with in section F below. It concerns the proposed appeal against the judge’s decision to strike out allegations of defamation in the amended particulars: see paragraph 3.o. of the October order.

The remaining points raised in the appeal skeleton are considered in section G below. Here, as in sections E and F, I take account not only of what was said in the appeal skeleton but also of what was said by Mr Chambers on behalf of Mrs Chambers at the hearing before me.

There is a further matter to mention before turning to section E. Paragraphs 6 to 8 of the July judgment set out the general legal principles applied by the judge. There was, and could not have been, any complaint about the judge’s account of those principles.

The £500 compensation

Mr Rooney’s application sought to strike out paragraphs 204 to 217 of the amended particulars. Those paragraphs were in head 5 of the amended particulars, “Accounting not to required standard”. They comprised sub-head 5.6, and complained in paragraph 210 that the £500 payment by the firm to Ms Wiles:

… was not recorded as an estate expense contrary to normal practice that all estate expenses should be taken from the estate bank account and recorded in the estate accounts.

Evidence on behalf of Mr Rooney in relation to his claim to strike out this sub-head included the fourth witness statement of Ms Schroedel of Freeths, the solicitors acting for Mr Rooney. I shall refer to this witness statement as “Schroedel 4”. The relevant part of Schroedel 4 for present purposes was in paragraph 29. I set it out with sentence numbers added in square brackets for convenience:

29.

[29.1] The claimant’s complaint is that a payment [the firm] made to [Ms Wiles] should have been paid into the Estate. [29.2] The facts alleged self-evidently do not disclose a cause of action: the £500 was a payment made by [the firm] to a client to compensate her for the inconvenience it had, regrettably, caused to her by not answering a letter from her with appropriate dispatch.

It is common ground that there was indeed a letter from Ms Wiles to Mr Rooney in 2007 that was not answered “with appropriate dispatch”, and that it was a letter about the estate.

The whole of Mrs Chambers’s sub-head 5.6 was founded on the premise that the £500 compensation was an “estate expense”. This can be seen, for example, in paragraph 210 of the amended particulars quoted in section E1 above. Schroedel 4 at sentence [29.2] sought to demonstrate that this premise was plainly incorrect, because it was clear that the £500 compensation was paid by the firm to Ms Wiles in her personal capacity. Sentence [29.2] explained, in effect, that the payment was personal compensation to Ms Wiles because Ms Wiles personally had written a letter that the firm had not answered when it should have done.

The reason that the judge struck out sub-head 5.6 was that she was satisfied that Mrs Chambers’s premise was indeed plainly incorrect. The July judgment at para 30 concluded that the £500 had been paid by the firm to Mrs Wiles on the basis that she personally had been caused inconvenience by the firm not answering a letter with appropriate dispatch. This is, to my mind, indisputably clear from the evidence before the judge. It follows that it was not an estate expense. The basic premise of sub-head 5.6 was mistaken.

There is another reason why it was right to strike out these paragraphs. The judge had understood from what was said to her that Mrs Chambers complained that the £500 should have been paid to the estate. This appears to have been how Ms Schroedel understood sub-head 5.6: see Schroedel 4 at [29.1], quoted in section E1 above. However paragraphs 204 to 217 of the amended particulars actually said that the £500 should have been paid not to, but by, the estate. Mr Chambers confirmed that this was indeed the complaint. This is an astonishing complaint. I cannot begin to identify any possible basis for it.

It seems from section 5 of part A of the appeal skeleton that Mr and Mrs Chambers thought that “… a beneficiary … should not have received a payment from the firm in respect of estate business unless it was recorded as an estate expense”. The answer is that the £500 compensation was not “in respect of estate business”. It was in respect of the firm’s failure to respond to a letter from Ms Wiles. True it is that the letter was about the estate, but that is neither here nor there. The firm had paid money to a beneficiary to compensate for failings in the firm’s own dealings with that beneficiary. Mrs Chambers has given no explanation of how the firm could be entitled to charge the estate for money that the firm pays a beneficiary to compensate for the firm’s own failings in dealings with that beneficiary. Nor has there been any explanation of how the executor could possibly be under a duty to charge the estate for this.

Moreover, I cannot see how, if it were right that the executor was under a duty to treat the £500 as an estate expense, there was any loss to the estate as a result of what actually happened. It is common ground that the money was paid by the firm, not by the estate. If the complaint were right the only consequence would be that the firm’s generosity had benefited the estate to the tune of £500. When I raised this with Mr Chambers he accepted that this was the case.

For all these reasons sub-head 5.6 provided no basis whatever for making any claim against Mr Rooney. Insofar as the proposed ground B seeks to complain about the judge’s striking out of paragraphs 204 to 217 of the amended particulars, and about the judge’s refusal to strike out parts of the defence responding to those paragraphs, Mrs Chambers’s proposed appeal has no prospect of success.

Mrs Chambers’s 20 June application concerned a different aspect of what was said in sentence [29.2] of Schroedel 4. Proposed ground A of appeal identifies three complaints about how the judge dealt with this.

Before turning to those complaints I make some general observations. The whole foundation for the 20 June application lay in the use of the word “client” by Ms Schroedel in that sentence when referring to Ms Wiles. Mrs Chambers’s 20 June application could only succeed if use of this word showed that Ms Wiles’s relationship with the firm went beyond dealings with the firm in her capacity as a beneficiary of an estate for which a partner in the firm acted as executor. In effect, Mrs Chambers made an assertion that use of the word “client” showed that Ms Wiles was employing the firm as her own professional adviser. If that assertion were incorrect then there was simply no basis for the claim in the 20 June application that Mr Rooney had a conflict of interest.

No reasonable person reading Schroedel 4 could possibly have thought that sentence [29.2] was being used in the sense suggested by Mrs Chambers. The sense suggested by Mrs Chambers is, of course, the normal sense in which a law firm would use the word “client”. But words take their meaning from their context. The word “client” is not used by law firms solely to describe a person that employs the firm. It can be used in a looser sense simply to mean a customer. It was perfectly plain from Schroedel 4 that sentence [29.2] used the word “client” in this looser sense.

Thus, even without regard to further evidence, the 20 June application was an obvious waste of time from the outset. It became an even more obvious waste of time when Ms Schroedel explained in her fifth witness statement (“Schroedel 5”) that sentence [29.2] had indeed used the word “client” simply to mean a beneficiary of an estate for which a partner in the firm acted as executor. The judge made a comment in paragraph 2 of the July judgment that, in paragraph 29 of Schroedel 4, Ms Schroedel could have made her position more clear, and no doubt regretted failing to do so. This comment offers no basis for suggesting that the 20 June application had any merit.

As to the three complaints in proposed Ground A of appeal, it is convenient to take them in reverse order. Ground A3 complained about a lack of reasons for dismissing the 20 June application. However, as noted above, paragraph 2 of the July judgment dealt with the 20 June application. In that paragraph the judge noted that Mrs Chambers’s application was to strike out the entire defence, and the judge explained why the application failed. The judge’s reasoning was succinct. The key point in paragraph 2 of the July judgment was that in fact, what Ms Schroedel was explaining was that Ms Wiles was being given compensation as an individual. The judge did not add, but in my view did not need to add, that it was accordingly in a looser sense than normally would be the case that sentence [29.2] used the word “client”. This was plainly implicit from what was said by the judge in paragraph 2 of the July judgment. Accordingly the complaint in ground A3 that there was no “narrative judgment” has no merit.

As to ground A2, sections 4 and 5 of part A of the appeal skeleton comprised 11 pages of elaborate arguments about “facts unconsidered in the hearing” (section 4) and dealing with a remark made by the judge, at a stage prior to the July judgment, about use of the word “client” being an error. These arguments, individually and together, can properly be described as clutching at straws. An obviously hopeless argument was that it was not enough for Mr Rooney’s solicitors to say that they did not consider Mrs Chambers’s arguments in relation to the use of the word “client” to have any merit. Similarly hopeless was the stress laid by Mrs Chambers on the fact that Ms Schroedel was a qualified lawyer and had verified Schroedel 4 with a statement of truth: qualified lawyers often use words in a loose sense. Equally hopeless was another argument seeking to derive some advantage from Mr Rooney’s stance, in relation to disclosure of a particular letter he wrote to Ms Wiles, that it fell within common interest privilege. The remaining arguments in sections 4 and 5 were of a similar character.

In order to try to find out whether there was something which might be meritorious I asked Mr Chambers what basis there was for thinking that Schroedel 4 at [29.2] was using the word “client” to mean anything other than Ms Wiles in her dealings with the firm over the estate. Mr Chambers said that there was a distinction between a client and a beneficiary, and that Ms Schroedel’s response to the point when put to her was simply that there was no merit in it. Neither of these answers negatives the obvious deficiencies in the 20 June application as set out above. Mr Chambers gave a third answer, referring me to passages in the appeal skeleton asserting that in later dealings with the court Mr Rooney had proposed and the court had accepted that he had a right to make submissions for Ms Wiles. I doubt whether these passages gave an objective account of what happened. Even if they did, nothing in these passages had any relevance to the question whether Schroedel 4 at [29.2] was saying that Mrs Wiles was, independently of her dealings with the firm as beneficiary of the estate, a client of the firm in any other respect. The meaning attributed to paragraph 29 by Mrs Chambers is, when that paragraph is read in context, manifestly absurd.

Paragraph 6.2 of an additional statement of case signed by Mrs Chambers on 1 February 2017 said that since 2006 Ms Wiles had been “suspected as being a client of” Mr Rooney, the firm, or another solicitor in the firm. It seems to me highly likely that what has happened is an example of “confirmation bias”. Mr and Mrs Chambers have long suspected that, independently of being a beneficiary of the estate, Ms Wiles was a client of Mr Rooney, the firm, or another solicitor in the firm. In June last year they reviewed Schroedel 4, seized on Ms Schroedel’s use of the word “client”, and then formulated increasingly elaborate and far-fetched arguments to the effect that the use of this word justified their suspicion. For the reasons given above, however, the judge was plainly right to conclude that Schroedel 4 at [29.2] did not use the word “client” in the way suggested by Mr and Mrs Chambers.

Ground A1 complains that Mrs Chambers “was denied the right to proper preparation” prior to the hearing of her 20 June application because “rules relating to the hearing of applications were not complied with. Assertions in support of ground 1 were made by Mrs Chambers in her witness statement dated 22 December 2016. As Mrs Justice Andrews pointed out, however, if anyone was likely to be prejudiced by the application being dealt with at the June hearing it was Mr Rooney. Mr Rooney, however, had no objection. Mrs Chambers complained that it was Mr Rooney’s lawyers who had advised her that an application notice was required, thus leading her to issue the application on 20 June. That is a red herring. Mrs Chambers had sensibly told the court, in a letter dated 9 June 2016, of her concerns about the use of the word “client” in Schroedel 4. The court’s response on 16 June was that the matter would have to be resolved at the June hearing. At that hearing Mrs Chambers had had ample notice that she would be required to advance her arguments on the point. In these circumstances the judge was fully entitled to abridge time. I add that, for the reasons given above, there is no reason to think that additional time would have enabled Mrs Chambers to come up with a winning argument.

What happened in relation to the 20 June application was said by Mrs Chambers to warrant a complaint of bias on the part of the judge. Three aspects were relied on. The first was the judge’s reference, noted above, to there having been an “error”. However it was, as it seems to me, a perfectly natural reaction for the judge to think that Ms Schroedel could have made the position clearer in Schroedel 4, and had made an error in not doing so. The second was that the judge expressed concern that matters of privilege might arise. As to that, an investigation into whether someone was or was not a client of the firm could well give rise to problems concerning legal professional privilege. In the event it proved possible to dismiss the 20 June application without needing to grapple with problems of this kind. The judge cannot be criticised for being concerned that they might arise. The third concerned the judge’s refusal to order a transcript, at public expense, of reasons given orally for refusing an adjournment on 22 June 2016. As Mrs Justice Andrews said, in an observation made when dealing with Mrs Chambers’s EOT application on the papers, transcripts are not provided as of right to unrepresented parties. The response lodged on behalf of Mrs Chambers was:

If transcripts are not provided “as of right” to unrepresented parties, it is assumed that represented parties receive transcripts as of right. This would introduce a note of (general) bias against unrepresented parties …

I have quoted this response because it demonstrates the willingness of Mr and Mrs Chambers to take out of context remarks made by others, including remarks by judges. Nothing in Mrs Justice Andrews’s observation suggested that represented parties were better off than unrepresented parties. No reasonable person could possibly have thought that Mrs Justice Andrews was suggesting this. Read in context, her point was simply that the mere fact that a party is unrepresented does not entitle that party to a transcript at public expense. It is time that Mr and Mrs Chambers stopped trying to twist remarks so as to set up a target that they can shoot at. They need to stand back and consider what has been said objectively. Litigation cannot be sensibly conducted in the way that Mr and Mrs Chambers have adopted in relation to the 20 June application.

For the reasons above the suggestion of bias in the way that the judge dealt with the 20 June application was groundless. It was a suggestion which should never have been made.

Mrs Chambers’s defamation claims

Head 12 of the amended particulars set out claims in respect of 9 statements by Mr Rooney that were allegedly defamatory of Mrs Chambers. The general tenor of the 9 statements was that Mr and Mrs Chambers had been obstructive, had behaved unreasonably, and had caused and would cause delay to the administration of the estate. The statements were made to one or other of Ms Wiles, a solicitors’ firm appointed by the LCS, the LCS itself, a different firm of solicitors, and the Land Registry. Paragraphs 379 and 381 added that further items “might be required to be added” to the 9 statements, and that a “full listing of the items” would be made at a later stage.

There was an obvious difficulty for Mrs Chambers in advancing head 12. This was that the 9 statements were made, and Mrs Chambers’s cause of action for defamation accrued, during the period 2007 to 2010 inclusive. Parliament has:

Mr Rooney’s application, citing section 4A, asserted that head 12 was time barred. He was plainly right to say that the period of one year specified in section 4A had expired. As noted above, the relevant causes of action accrued when the allegedly defamatory statements were made. The period of one year thus undoubtedly expired in 2011.

Mrs Chambers makes an assertion that section 32A in some way puts back the date on which the cause of action accrues. A broad description of s 32A was set out in paragraph 61 of the July judgment. It gives the court power, in certain circumstances, to direct that s 4A shall not apply. If the power is exercised it does not mean that accrual of the cause of action is put back. It simply means that, in relation to a particular allegedly defamatory statement, the claimant can proceed even though more than one year has elapsed since the cause of action accrued. The task for Mrs Chambers, in response to this part of Mr Rooney’s application, was to show why head 12 should be allowed to proceed despite the lapse of a very substantial period of time. I return to this task below.

At this stage it is convenient to deal with four points of a preliminary nature:

Returning to the stage at which the period of one year expired, it is not clear from the July judgment that the judge correctly identified quite how long ago that had been. Paragraph 59 of the judgment seems to suggest that Mrs Chambers would not have needed to rely on s 32A if a claim including head 12 had been brought before March 2015. March 2015 would, according to Mrs Chambers, have been one year after she became aware of the defamatory statements. However:

Mrs Justice Andrews pointed out that on any view the allegedly defamatory statements were made more than one year before the original claim form was issued in October 2013 and over 4 years before the original particulars of claim dated 12 December 2014. Accordingly, once a limitation point was taken, Mrs Chambers had to rely on s 32A in order seek a ruling by the court that would allow head 12 to be able to proceed.

The summary in paragraph 61 of the July judgment included a broad account of subsection (2)(b)(ii) of section 32 (see above). In the appeal skeleton, and in response to Mrs Justice Andrews, Mrs Chambers relies on a document served on 31 May 2015 (“the May 2015 response”) in response to Mr Rooney’s application of January 2015. The May 2015 response gave details of 8 of the 9 alleged statements eventually relied on in head 12, along with numerous other allegedly defamatory statements which are not specifically identified in head 12.

A key point in this regard, as it seems to me, is that even if Mrs Chambers is right to say that she only became aware of relevant defamatory statements in March 2014, she allowed nine months to go by before Mr Rooney issued his application, and despite the issue of that application allowed more than four further months to go by before identifying any particular statements as being ones which she intended to rely upon. Nothing prevented her from doing this during the period between March 2014 and January 2015, when Mr Rooney issued his application. Mrs Chambers says that once the application was issued she thought she could not give further particulars. But this did not stop her from setting out the details which she gave in the May 2015 response. I cannot see any reason why it should have stopped her from giving those details much earlier.

Mrs Chambers says that the libels she relies on were of such gravity that the court should allow the claim to proceed. To my mind the reverse is true: the graver the alleged libel, the sooner one would expect Mrs Chambers to have set it out and explained why it was defamatory.

In these circumstances it is unrealistic to think that Mrs Chambers had any prospect of persuading a court, having regard to subsection (2)(b)(ii), to allow head 12 to proceed under s 32A. It is accordingly unnecessary to express any view on whether there is an arguable case that the judge was wrong to describe the allegations of defamation as allegations which do not appear to have any merit.

Mrs Chambers complained that the judge did not deal with the question whether section 35 of the Limitation Act could assist her. In particular, Mrs Chambers drew attention to a court order under which, she contended, the claim was to proceed as if it had been begun on 16 October 2013. She added that the amended particulars were, under s 35, to be treated as if head 12 had been begun on that date. For the reasons given above, however, s 35 could not conceivably have assisted Mrs Chambers. As noted by Mrs Justice Andrews, the original claim was long after the one year period under s 4A had expired. The real issue was whether the court could be persuaded that it would be equitable under section 32A to allow head 12 to proceed despite the expiry of the one year period. For the reasons given above Mrs Chambers’s failure to act promptly on becoming aware of the allegedly defamatory statements was such as to give rise to no real prospect that a court could be persuaded of this.

Other complaints

In this section I deal with the remaining complaints specified in the appeal skeleton.

The July judgment first dealt with punitive/exemplary damages in paragraphs 18 to 20. These paragraphs formed part of the judge’s reasons for striking out head 4. Paragraph 19 set out the two bases upon which punitive/exemplary damages could be awarded. It said that the present case did not fall into either category with the result that head 4 must fail.

The appeal skeleton said that such damages were claimable under the second basis identified in paragraph 19:

… where the defendant’s conduct has been calculated ... to make a profit … which may well exceed the compensation payable to the plaintiff.

I asked Mr Chambers generally about the instances where punitive/exemplary damages were said to be claimable in this way. What I wanted to know was whether, in respect of any of them, the amended particulars had actually asserted that Mr Rooney had calculated that he would make a profit which might well exceed the compensation payable. Mr Chambers replied that they did not.

The question which then arises is whether it is arguable that the judge should have given Mrs Chambers an opportunity to plead such an assertion. In that regard I note that the appeal skeleton itself merely contains an allegation that:

There are grounds for believing that [Mr Rooney] did in fact profit from many of his actions of negligence, and it is believed that these profits were intentional.

There was no specific information to back up this allegation. An assertion that a wrongdoer’s conduct has been calculated to make a profit which may well exceed the compensation payable is a very serious assertion. Even now Mrs Chambers has provided nothing specific to justify such an assertion. In these circumstances there is no merit in the notion that Mrs Chambers ought to have been given time to reformulate her claim.

The appeal skeleton did not go through specific instances where claims to damages had been struck out because they could not warrant a claim to punitive/exemplary damages. It is accordingly unnecessary for me to do so.

Mrs Justice Andrews described the judge’s decision that Mrs Chambers had no basis for seeking punitive/exemplary damages as “unimpeachable”. For the reasons given above, I agree.

Under this heading the appeal skeleton made comments about the ability of the court to attempt to redress the balance between the parties having regard to any imbalance in their status or facilities. However no specific occasion was identified on which the judge was said to have failed to attempt to redress the balance. That being the case I simply record that:

The July judgment dealt with this sub-head in paragraphs 25-27. There had been an order on 6 June 2014 that any dispute as to the amount of Mr Rooney’s fees paid out of the estate must be the subject of an application to a costs judge for an assessment of such fees out of time under sections 70 and 71 of the Solicitors Act 1974.

Mr Chambers’s response was that sub-head 5.3 merely sought information. That, however, ignored the fact that the information would go to the question whether Mr Rooney’s charges could be reconciled with his time ledger. In these circumstances the judge was plainly right to strike out sub-head 5.3.

At paragraphs 36 to 38 the July judgment noted that this head claimed damages for exposure to a risk of personal injury, and pointed out that this was not a claim that was tenable in law. Mr Chambers did not dispute relevant legal principles, but submitted that this sub-head could be justified because there were claims for specific items. However on checking the amended particulars he recognised that he had been mistaken: no claims were made for specific items. The judge was, accordingly, plainly right to strike out head 7.

Paragraphs 39 to 41 of the July judgment dealt with this head. They held that there was no basis for this head of claim in fact or in law. Mr Chambers urged that the facts called for a trial: but no evidence was provided to give any basis for thinking that the judge was wrong in her assessment of the factual position. Nor could there be any legal basis for this head of claim, in respect of which no evidence of actual costs had been provided.

Paragraphs 44 to 47 of the July judgment dealt with this head of claim. They noted that it was for the alleged loss and damage and cost to Mrs Chambers of doing things that she said she had to do because Mr Rooney had failed to do them. The head of claim was struck out for two main reasons. The first was that in taking such steps as she did Mrs Chambers had acted voluntarily. The second was because the costs of writing letters and other communications were irrecoverable in the circumstances.

The appeal skeleton and oral submissions rehearsed alleged failings by Mr Rooney. The bald assertion was made that Mrs Chambers was acting to prevent loss to the estate. This bald assertion does not address the reasons given in paragraphs 44 to 47 of the July judgment. Accordingly I can identify no basis for thinking that an appeal in relation to this head of claim would have any prospect of success.

Conclusion

For the reasons given above I conclude that there is no arguable basis for the proposed appeal. It follows that there would be no practical value in granting an extension of time. It is for that reason that on 17 February I made an order refusing an extension of time.

Mr and Mrs Chambers will, I am sure, be disappointed by this conclusion. However they must recognise that the judge has disposed of heads and sub-heads of claim which would otherwise have occupied a great deal of time at the trial, and on which Mrs Chambers was bound to fail. The position now is that the trial will proceed next month. It will be limited to matters on which Mrs Chambers may – I stress “may” – have a prospect of success. The course to be taken now by Mrs Chambers is to leave behind the matters which have been disposed of by the judge, and to concentrate on the forthcoming trial.