Mark Keilaus & Anor v Nicola Houghton & Anor
[2024] EWHC 2108 (Ch)
Derina Tetla Phipps v Bruce Constantine Goulbourne
26 January 2024
[2024] EWHC 130 (Ch)
High Court
A daughter tried to get a court to forgive her lawyer's mistake in missing a deadline to file paperwork about her mother's will. The court said the lawyer's mistake was a big deal and the daughter missed too many chances to fix the problem. The court refused to forgive the mistake, meaning the daughter likely loses her chance to inherit under the will.
Key Facts
- •Claimant seeks relief from sanctions for failing to serve a probate claim within the time limit set by an 'unless order'.
- •The claim concerns the estate of Tetla Yvonne Goulbourne, who died in 2020.
- •The Claimant, the deceased's daughter, seeks to propound a copy of a will of which she is the sole beneficiary.
- •The Defendant, the deceased's widower, applied for a grant of administration as if the will were invalid due to the Claimant's delay.
- •An 'unless order' was issued, requiring the Claimant to issue and serve a claim within 28 days; this was not done.
- •The Claimant filed the claim form in time but failed to serve it within the specified timeframes.
- •The Claimant's solicitors mistakenly believed the court would serve the claim form.
- •The application for relief from sanctions was made after the claim form's validity expired.
Legal Principles
Relief from sanctions will be granted considering all circumstances, including the need for efficient litigation and compliance with rules and orders.
CPR r. 3.9
The Denton test: (1) seriousness of the breach; (2) good reason for the breach; (3) all circumstances of the case, with particular weight given to factors in CPR 3.9.
Denton v TH White Ltd [2014] EWCA Civ 906
Breach of an unless order is a serious pointer towards seriousness and significance, but not every breach is serious or significant.
Oak Cash & Carry Limited v British Gas Trading Limited [2016] EWCA Civ 153
Seriousness and significance of a breach cannot be limited to its effect on the litigation timetable; a breach can be serious even if it doesn't affect the timetable.
Diriye v Boja [2020] EWCA Civ 1400
Service of an unsealed claim form is insufficient; valid service requires a sealed copy.
Ideal Shopping Direct Ltd v Mastercard Incorporated [2022] EWCA Civ 14
In the Rolls Building Jurisdictions, parties, not the court, are responsible for serving documents.
Practice Direction 51O, Chancery Guide 2022
The court will consider whether the failure to comply was the fault of the party or their legal representatives, but this depends on all the circumstances of the case.
Mischon de Reya v Caliendo [2015] EWCA Civ 1029
Outcomes
The Claimant's application for relief from sanctions is refused.
The breach was serious and significant; no good reason for the default was shown; the application for relief was not made promptly; granting relief would undermine the unless order.
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