CH-2025-BRS-000001 - [2025] EWHC 2373 (Ch)

Julian complains of four procedural irregularities in the course of the hearing before the judge below. The first is that the judge failed properly to consider the central issues before deciding the case. The second is that he allowed “significantly more time” to the respondent’s counsel, thus “creating an unfair procedural imbalance”. The third is that the judge failed to address adequately or to sanction the respondent’s non-compliance with the CPR. The fourth repeats a point made earlier, that the respondent’s counsel wrongly submitted that the earlier judge had not had his attention drawn to, or taken account of, the decision in Schumacher v Clarke. Overall, Julian says that these irregularities amount to a denial of natural justice and undermine the fairness of the hearing.

As to the first of these, there is a real problem about the phrase “central issues”. Although that phrase is used (so far as I can see, only once) in the grounds of appeal, it is not defined in those grounds, and it does not appear at all either in the skeleton argument prepared for Julian for the hearing before the district judge or in the skeleton argument prepared for Julian for hearing before me on the appeal. Nor do I recall any discussion of this phrase during the hearing. So, I am not clear what the phrase as used in the grounds of appeal is intended to refer to. In the transcript of the hearing before the district judge I have found two references to “central issues”. Both are made by Julian’s counsel. One of them (at page 261 of bundle 5) is “The central two issues are whether Nick owes £90,000 to the estate, and Nick's assertion that Julian owes £117,000 to the estate.” The other (at page 264 of bundle 5) is “So, the central issue is that school fees order.”

I do not know if these are what Julian meant to refer to by “the central issues”. If so, then in my judgment they are not central at all. The central issue is whether Julian should be removed as executor and trustee. The prayer in the counterclaim does not ask for determination of any of these other three issues. Moreover, the judge below was not dealing with the counterclaim anyway. He was dealing with the application made by the respondents by notice dated 28 March 2024. That application did not ask for the determination of any of those three issues either. It asked instead for summary determination of the issue whether Julian should be removed, together with the appointment of a trust corporation in his place, vesting orders and costs.

If, on the other hand, Julian meant to refer to some other issues as the “central issues”, then he has not explained what they are. I am not able to hold that the judge reached the wrong conclusion when I am not told what it is that he is supposed to have done wrong. In my judgment this point goes nowhere.

As to the second point, the transcript of the hearing before the judge (excluding the cover page) runs to 83 pages. Looking at it, the respondents’ counsel appears to have been on his feet for some 45 of these, and the appellant’s counsel for some 33. Whilst it is clear that the respondents (being the applicants in the application) addressed the court for longer than the appellant, I do not find the disparity either surprising or significantly unbalanced. Having read the transcript, I gain no impression that the appellant’s counsel had in any way to truncate or shorten his submissions, and his submissions before me do not say that he did. On my reading of the transcript, he said everything that he wished to. I am told that the court sat late in order to make sure that he could do so. The fact that one counsel speaks more or for longer than the other can be explained in a myriad ways other than procedural irregularity. There is nothing in this point.

The third point is the alleged failure to address adequately or to sanction the respondent’s non-compliance with the CPR. I cannot recall any oral submission on this point during the hearing. Nor have I found any reference in Julian’s skeleton argument for the hearing before me which deals with this. However, there is a reference in Julian’s skeleton argument for the hearing before the judge below as follows:

“9.

… [The respondents’ solicitors] decided, without permission of the Court, that by virtue of them filing the application, they need not comply, and have not – that of course, was simply wrong, as they required the Court’s permission and now require relief from sanction to file any evidence. The consequence is that there ought to be an adverse costs order against Leesa [sic] and Nick.”

But, whatever the merits of that submission, that would not mean that the respondents were not entitled to be heard on their application of 28 March 2024, nor that, if they were otherwise entitled to the relief they sought by that application, the court should not grant it. This is not alleged to be (and is not) a case of contempt of court: cf Hadkinson v Hadkinson [1952] P 285, CA. This point too goes nowhere.

As to the fourth point, I have already held that, even if the respondent’s submission about the citation of Schumacher v Clarke were wrong, it would make no difference. In any event, making a submission which turns out to be factually wrong is not a procedural irregularity automatically justifying the overturning of a judicial decision. If it could be shown that the court based its decision on the erroneous factual statement, then that might be different. But there is nothing in the judgment below to indicate that. There is nothing in this point.

Accordingly, this ground also fails.