Civil procedure – Appeal – Applicant acting as litigation friend of mother – Mother dying before trial of action – Applicant not informing court of death – Respondent bank obtaining possession order on ground that mother bound by charge over residential property – Permission to appeal granted – Whether notice of appeal to be struck out – Whether applicant entitled to adjournment to obtain legal advice following grant of letters of administration – Adjournment refused – Notice of appeal struck out and appeal dismissed
The applicant was the son of an old lady who suffered from Alzheimer’s disease. He acted as his mother’s litigation friend in an action to set aside a sale of residential property for £430,000 on the grounds that it was at an undervalue, had been procured by undue influence and was an unconscionable bargain. In 2005, the court ordered that the property be transferred back to the applicant’s mother, but subject to a charge that the transferee had granted to the respondent to secure a loan of £145,000, and with the respondent’s costs added to its security.
The applicant continued to act for his mother in further proceedings by which the respondent sought a possession order in respect of the property. The Court of Protection appointed the applicant as his mother’s receiver and he became her deputy under Schedule 5 of the Mental Capacity Act 2005. In 2010, the applicant’s mother died in the USA, where she had gone to live with her daughter. The applicant did not inform the court of this and gave evidence that his mother was still living in the USA.
Following a trial, the respondent’s claim was allowed and a possession order was granted. The judge held that the applicant’s mother, notwithstanding her lack of capacity, had so conducted herself as to give the respondent reasonable ground for believing that she consented to the creation of the charge in priority to her interest; he held that she was therefore estopped from asserting a prior interest and was bound by the charge. The respondent’s costs were again added to its security under the charge.
Permission to appeal was granted and an appeal hearing was fixed. In his appeal notice, the applicant again indicated that his mother was still alive. The respondent later learned of her death and applied to strike out the notice of appeal as an abuse of process. After a hearing on that issue, but before the court gave judgment, the applicant wrote to the court enclosing letters of administration that he had obtained in respect of his mother’s estate. He applied to adjourn the proceedings in order to obtain proper legal advice.
Held: The application for adjournment was dismissed; the notice of appeal was struck out.
The applicant had ceased to be his mother’s litigation friend, or a “protected party” within CPR 21, on her death in 2010. Although CPR 19.8(1) made provision for the appointment of a person to represent the estate of a deceased party, there had been no application for such an order. Neither at trial, nor when he obtained permission to appeal, had the applicant had any standing to conduct litigation on behalf of his mother’s estate. Nor did he had any legal standing to conduct an appeal on the basis of the permission to appeal. The grant of letters of administration had not retrospectively given him a capacity that he had at the time lacked to issue an appeal notice or apply for and obtain permission to appeal: Millburn-Snell v Evans [2011] EWCA Civ 577; [2012] 1 WLR 41 applied. An administrator’s title was derived solely from the grant of letters of administration, which did not retrospectively validate antecedent suits.
The applicant should have informed the court hearing the case, the Court of Protection and the parties of his mother’s death. He had actively misled the court and the respondent that his mother was alive in witness statements, in evidence on oath and in relation to permission to appeal. Accordingly, the grant of permission to appeal should be set aside on the ground that there was a compelling reason for doing so within CPR 52.9(2). The appeal notice should be struck out for the same reason under CPR 52.9(1)(a).
That did not render the order made at first instance a nullity. Like all orders of the court, it stood and had effect unless and until it was set aside on an application to the court. As to the appeal, since permission to appeal had been obtained by the deception of a person without standing, and that permission had been set aside, there was no appeal to be decided and it would be dismissed. There was no point in granting an adjournment since it could change nothing in relation to the appeal; the court was not dealing with the administration of the mother’s estate but only with the disposition of the appeal.
The applicant appeared in person; Thomas Grant and Laurie Scher (instructed by Underwoods Solicitors LLP) appeared for the respondent.
Sally Dobson, barrister
