Picarda and Others v Picarda and Another

On an application to dismiss for want of prosecution, inordinate and inexcusable delay creating a substantial risk to a fair trial may justify striking out. A claim to recover property transferred during the donor’s lifetime is a conversion claim subject to six years, rather than a claim to a deceased person’s personal estate under the Limitation Act 1980. A claim to a share in that estate falls within the 12-year limitation provisions. Similarity between a claim and counterclaim does not, by itself, prevent strike-out. Lifetime gifts may nevertheless remain relevant to distributing the estate.

The plaintiffs, children of Pierre Picarda, brought claims based on French law concerning Pierre’s estate and property transferred during his lifetime. They sought an account and consequential relief against the executors of Pierre’s will, alleging, among other matters, that the marriage was subject to the community of goods regime and that Pierre’s testamentary dispositions exceeded the permitted limits under the French Civil Code.

The first defendant applied to dismiss for want of prosecution. Master Barratt dismissed the application, but Warner J allowed the first defendant’s appeal and dismissed the action. The plaintiffs appealed to the Court of Appeal. The central issues were whether delay and prejudice justified dismissal, whether the claim and counterclaim raised sufficiently similar issues, and which limitation periods applied to the separate claims.

1. Disposition. Rose LJ delivered the leading judgment. Pill LJ agreed, and Staughton LJ agreed with the proposed order for the reasons given. The appeal was allowed in part and dismissed in part. The direct claim to recover money or property transferred by Pierre during his lifetime was dismissed and was to be removed from the statement of claim. The claim concerning distribution of Pierre’s estate was preserved to the limited extent identified by the court.
2. Want of prosecution. Warner J had directed himself that dismissal required inordinate and inexcusable delay creating a substantial risk that a fair trial would not be possible. He found 18 months’ inordinate delay, 16 months of which was inexcusable, and identified a substantial risk arising from the age and illness of material witnesses. The Court of Appeal found no misdirection or improper treatment of relevant factors. Those conclusions and the resulting exercise of discretion were therefore unassailable.
3. Similarity of issues. Similarity between the claim and counterclaim did not itself prevent dismissal. Although domicile and French law affected the effectiveness of the alleged distribution of the estate, the formal validity of Pierre’s will and codicil was not generally in issue. The overlap was insufficient to save the claim if it was otherwise liable to be struck out.
4. Limitation. A claim to recover lifetime gifts was not a claim to the personal estate of a deceased person within section 22 of the Limitation Act 1980. It was a conversion claim subject to six years, so any fresh action was statute-barred. By contrast, the identified claim to a share in Pierre’s estate fell within sections 22 and 21(a), attracting a 12-year period from death. Applying Birkett v James [1978] AC 297, the possibility of commencing fresh proceedings within that period justified preserving that part of the claim. The value of the estate was not determinative.
5. Scope and costs. The existence of lifetime gifts could remain relevant to determining how the estate should be distributed under the applicable law. The order for costs below stood. There was no order for costs of the appeal, save for legal aid taxation.

1. Court of Appeal (Civil Division) — On 25 July 1995, allowed the plaintiffs’ appeal in part and dismissed it in part.
2. Chancery Division — Warner J, on 17 February 1993, allowed the first defendant’s appeal from Master Barratt and dismissed the action against the first defendant.
3. Master Barratt — On 15 October 1992, dismissed the first defendant’s application to dismiss the action for want of prosecution.