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

On 5 February 2019, Leessa and Nick issued an application for summary judgment on the counterclaim. On 19 February 2019, DJ Watson gave directions in these proceedings. He ordered that the issue of the validity of Jean’s will be determined as a preliminary issue, before the other issues raised in the claim and counterclaim. He also ordered that the application for summary judgment be adjourned until further order, with permission to restore. The preliminary issue was tried by DJ Watson in June 2019, and in July 2019 he handed down judgment, holding that Jean’s 1996 will was valid. He ordered that the 2013 letters of administration be revoked. In September 2019, DJ Watson ordered Leessa and Nick to pay Julian’s costs of the validity issue (including detailed assessment), and gave full directions for the trial of the counterclaim. These included amendments to statements of case, disclosure, preparation and service of witness statements and costs management, all leading to a four-day trial hearing. In November 2019 Julian obtained a grant of probate of Jean’s will.

However, despite the order of DJ Watson in September 2019, the costs liability was never assessed, and the directions for the trial of the counterclaim were not progressed. Instead, the parties sought to negotiate a solution. For this purpose, they sought a stay of the counterclaim, which was granted by DJ Watson in October 2019. When the stay ran out, they sought another one. Ultimately, no fewer than 10 stays were successively granted, one every few months. There was a mediation in January 2022, but evidently it was unsuccessful, and the stays continued to be sought and granted. In June 2023 these proceedings came before me for the first time, on an application for a further stay. I refused any further stay, on the basis that, if the mediation had failed, and the parties’ continued negotiations were producing no agreement, then the parties had to litigate.

Fresh directions were therefore given by DJ Taylor in November 2023, though still leading to a four-day trial. However, after disclosure and exchange of witness statements, Leessa and Nick made an application on 28 March 2024 for a summary determination of the removal application. It was referred to me and I directed that it be listed before DJ Wales. It was then heard by him on 16 September 2024. On 3 December 2024 the judge handed down his written judgment, having previously circulated a draft in the usual way. As I have said, the application was successful. However, at the hearing on 3 December 2024 counsel for Julian sought to persuade the judge to exercise the so-called Barrell jurisdiction (from Re Barrell Enterprises [1973] 1 WLR 19, CA) and make a number of substantive changes to his judgment. The judge declined that invitation. He then heard argument on consequential matters, including costs, and gave an extempore judgment. Finally, he made the order now under appeal.