Wright & Anor v Fitzgerald

On a second appeal, permission requires an important point of principle or practice, or another compelling reason for the Court of Appeal to hear the case. The threshold is not met by grounds that merely challenge concurrent decisions below where the proposed appeal has no substance. In an application under section 41 of the Trustee Act 1925, the court may replace an existing trustee where doing so is expedient and court assistance is necessary. A trustee’s imprisonment, together with circumstances affecting proper trust administration, may make removal and replacement overwhelming.

The claimants, acting as trustees of the deceased’s will, applied under section 41 of the Trustee Act 1925 to replace the defendant as trustee. The defendant was imprisoned and was subject to a confiscation order. A dispute had arisen over payment of repair and maintenance costs claimed by the landlord of trust property.

A Deputy District Judge appointed a replacement trustee. His Honour Judge Weeks QC extended time, heard the defendant’s appeal, and affirmed that decision. The defendant then sought permission for a second appeal. The central questions were whether the lower courts had erred and whether the proposed appeal satisfied section 55(1) of the Access to Justice Act 1999 and CPR 52.13.

1. Application dismissed. Permission for a second appeal was refused. The proposed appeal raised no important point of principle or practice, and there was no other compelling reason for the Court of Appeal to hear it.
2. The court agreed that there were no grounds for interfering with either lower order. The defendant’s grounds of appeal had been considered and lacked substance.
3. The case for removing the defendant as trustee and appointing Mr McNeil in his place was overwhelming. Section 41 of the Trustee Act 1925 permits replacement where it is expedient to do so and it is inexpedient, difficult or impracticable to act without the court’s assistance.
4. The complaint about insufficient notice did not justify intervention. The defendant had been represented by counsel, counsel had argued both applications, and no adjournment had been sought.
5. It was appropriate to determine the application in the defendant’s absence because he was imprisoned and had neither appeared nor been represented. The formal order was: Application dismissed.

• Court of Appeal (Civil Division): Application for permission to bring a second appeal dismissed.
• Chancery Division: His Honour Judge Weeks QC extended time, treated the matter as a substantive appeal, and affirmed the Deputy District Judge’s decision.
• Bristol District Registry: Deputy District Judge Woodburn appointed Mr Alastair McNeil as trustee in place of Mr Fitzgerald under section 41 of the Trustee Act 1925.