Chitolie v Chitolie & Anor

A litigant cannot require an application to be heard by the full Court of Appeal where legislation permits a single Lord Justice sitting in open court to determine it. Contentious probate proceedings alleging forgery must be commenced in the prescribed form and under the applicable procedural rules; an informal application cannot substitute for a claim form. A concluded action cannot ordinarily be used as a vehicle for new substantive claims through interim applications. Non-compliance with an unless order requiring appeal documents may result in dismissal without further order.

The applicant, a litigant in person, sought to reinstate or pursue several applications arising from disputes concerning his late sister’s estate, possession of a house and the recovery of personal belongings. Earlier applications had been dismissed or stood over in the Chancery and Family Divisions. He also challenged an unless order made in an application for permission to appeal an order concerning a transcript in separate proceedings.

The Court of Appeal considered whether the applications should be reinstated, whether possession proceedings could be used to pursue claims for the return of belongings, whether a single Lord Justice could determine the applications, and whether the unless order was within the court’s jurisdiction.

1. Disposition. The applications were dismissed. Permission to appeal from the orders of Ferris J and Rimer J was refused, and the application to reinstate the application struck out for non-compliance with the unless order was dismissed.
2. Constitution of the court. Under section 54(2) of the Supreme Court Act 1981, the Court of Appeal was properly constituted to hear applications of this kind before a single Lord Justice sitting in open court. A litigant has no right to require a full court or to choose the judge.
3. Contentious probate. An allegation that a will was forged had to be pursued through properly constituted contentious probate proceedings. An informal application to revoke probate, without a claim form and without compliance with the specialised procedure, was not a valid substitute. Dismissal without prejudice to a properly constituted claim was therefore appropriate.
4. Separate claims and interim procedure. The possession action was, for practical purposes, at an end. It could not be used as a vehicle for substantive claims concerning personal property through interim applications. Any justified claim should be brought as a separate action. The refusal to order access to the house was an impeccable exercise of discretion.
5. Unless order. Master Venne had jurisdiction under CPR 52.16 to require filing of a compliant appeal bundle, including the transcript, within a specified period and to provide for dismissal without further order on default. No sufficient explanation for non-compliance or further indulgence was advanced.

• Court of Appeal (Civil Division) — [2002] EWCA Civ 1268: applications dismissed and permission to appeal refused.
• Family Division — Pumfrey J dismissed the informal application concerning revocation of probate without prejudice to properly constituted contentious probate proceedings. Chadwick LJ refused permission to appeal.
• Chancery Division — Ferris J dismissed a further informal application and refused permission to appeal. Rimer J made no order on the application concerning access to the house and personal belongings.
• Chancery Division — Lightman J’s order concerning a transcript was challenged in a separate appeal application. Master Venne made an unless order, and the application was struck out for non-compliance.