Placito v Slater & Ors

A party seeking release from an express undertaking given as part of a consensual settlement must establish special circumstances. Those circumstances must be unusual and unanticipated when the undertaking was given, rather than a foreseeable failure to meet an agreed deadline.

The application is not one for relief from a procedural sanction under CPR 3.9. However, where refusal entails striking out a claim for abuse of process, the special-circumstances test must be applied consistently with the overriding objective and proportionality. The beneficiary’s loss of the agreed finality of the settlement is material prejudice. A voluntary and unequivocal agreement limiting access to court does not, without compulsion, breach Article 6.

The claimant sought to revoke probate of his brother’s 1999 will and to establish an earlier will on the ground of lack of testamentary capacity.

In an earlier probate dispute, the claimant was joined to a consent order settling his brother’s challenge. He undertook not to commence his own probate proceedings after 5 June 2002. He issued the claim on 11 June 2002, after his solicitors had missed the agreed deadline.

The Deputy Master refused an extension and struck out the claim. On appeal, the deputy judge held that the claimant required release from his undertaking and had not shown special circumstances. The claimant appealed, contending that the court should instead apply the CPR relief-from-sanctions approach and that strike-out was disproportionate.

1. Appeal dismissed. Potter LJ, with whom Laws and Arden LJJ agreed, held that the claimant’s obligation arose from his express undertaking, voluntarily given as part of a consensual settlement, rather than from an unless order.

2. The judge correctly adopted the test in Eronat v Tabbah [2002] EWCA Civ 950. Release or modification requires special circumstances: circumstances of a kind or gravity not contemplated, and not reasonably foreseeable, when the undertaking was given. The court must consider the context and purpose of the undertaking, whether it formed part of a bargain between the parties, and whether release would retrospectively deprive its beneficiary of an accrued contractual benefit.

3. CPR 3.9 did not govern the application. The undertaking was not a sanction for failure to comply with a rule, practice direction or court order. Nevertheless, because refusal would lead to strike-out for abuse of process under CPR 3.4(2)(b), the court had to apply the special-circumstances test within the overriding objective, including proportionality.

4. The solicitor’s unjustified delay did not amount to special circumstances. The absence of practical litigation prejudice did not answer the real prejudice: the executors would lose the finality for which they had bargained. Strike-out was not disproportionate, even though it prevented a trial, particularly as the claimant was likely to have a remedy against his solicitors.

5. Potter LJ also rejected the Article 6 argument. A litigant may voluntarily and unequivocally waive access to a court in private-right litigation. The agreed time limit was such a valid waiver and disclosed no breach of Article 6(1) of the European Convention on Human Rights.

• Court of Appeal (Civil Division): Dismissed the claimant’s appeal and upheld the striking-out of the probate claim.
• High Court of Justice, Chancery Division: On 18 March 2003, Mr L Henderson QC, sitting as a deputy judge, dismissed the appeal from the Deputy Master. He held that the claimant had not shown special circumstances justifying release from the undertaking.
• Deputy Master: On 8 August 2002, refused to extend the time for commencing proceedings and struck out the claim as an abuse of process.