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

On 31 January 2025 Michael Green J granted a stay of the order pending disposal of the appeal or further order. The judge’s reasons for so doing were:

“1.

The only reason given in section 11 for the stay is that if an independent administrator is appointed pursuant to the Order the estate will necessarily incur more expense in transferring all the files and getting on top of things in order to begin administering the estate. But in the circumstances of this case, that seems to me to be a sound reason where the Appellant is proposing to challenge his removal as executor on appeal.

2.

I note that DJ Wales came to a firm conclusion that the Appellant should be removed because of the conflicts of interest that have arisen in relation to the administration of the estate, but it seems to me that the ring should be held pending consideration of the application for permission to appeal. When that is considered, a further order can be made either continuing the stay until final disposal or removing it. It does seem to me to be potentially prejudicial to all the parties and the estate to incur the costs that might be wasted if the Appellant were to win his appeal.

3.

I do not think that much needs to be done in relation to the estate in the meantime and I would urge the Appellant to restrain from taking decisions in relation to the estate until progress on the appeal is further determined.”

As already stated, on 3 March 2025, the same judge granted permission to appeal. He also continued the stay. The judge’s reasons for granting permission were as follows:

“1.

While I understand the desire of District Judge Wales (the ‘Judge’) to move things along in the administration of the estates of Jean and Alexander Fernandez and can see that he came to the ‘firm conclusion’ that the Appellant needed to be removed as executor and trustee, I consider that he arguably miscalculated and erred in law in determining that that was the appropriate way forward in the circumstances of this case. While the litigation had been progressing very slowly, there were moves for the factual disputes between the parties to be resolved at a trial. The Judge considered that that was probably the wrong route to take and that the better course was to adopt a more summary procedure of deciding to remove the Appellant as aforesaid and the imposition of an independent professional trustee.

2.

The Grounds of Appeal are extensive and perhaps a little over elaborate. But I do consider that they pass the threshold of having a real prospect of success on appeal. The Judge decided to adopt the procedure he did, for possibly sound case management reasons and in accordance with the guidance of Schumacher v Clarke [2019] EWHC 1031 and clearly balanced many factors as set out in paragraph 19 of his careful judgment. However, after years of litigation but also much progress in the administration of the estates such that there is relatively little remaining to be resolved – being mainly Courtfield Road and the various accounting and disputed items as between the Appellant and the Respondents – I think that an appeal should scrutinise whether the removal of the Appellant is actually the best and cheapest way of resolving these outstanding issues.

3.

Of course there is a danger that spending time and money on an appeal will be wasted but there is also the expense of a professional trustee who may have to litigate as well if the Judge’s solution remains in place. I know that mediation has been attempted in this case but it will be referred automatically to the High Court Appeals Mediation Scheme and I hope that every effort will be made by all parties to settle this out of court. It is in no one’s interests to prolong this litigation, diminishing the assets in the estates. But having concluded that there are real prospects of success on this appeal, I must give permission to appeal. The stay will continue in the meantime.”