Ghafoor & Ors v Cliff & Ors

Applications for limited grants of administration are ordinarily made without notice only because they are usually non-contentious. Where the circumstances are materially contentious, serious allegations are made, and the grant may interfere with other executors’ functions, notice should ordinarily be given. Applicants must make full and frank disclosure of every relevant circumstance, including the basis for allegations and any material uncertainty. A solicitor acting for one interested party will generally lack the independence required to administer a disputed estate. Failure to observe these principles may justify revocation and a costs order against the applicants. Private communications with a registrar about the decision or its evidential basis are improper.

The claimants, three executors of Abdul Ghafoor’s will, applied to revoke a grant of administration ad colligenda bona made in favour of the first and second defendants, solicitors acting for the third defendant, who was the fourth executor and a beneficiary.

The grant had been obtained without notice on the basis of allegations concerning the claimants’ conduct and proceedings in Pakistan. It was later revoked by consent. The parties disputed the incidence and basis of the costs of the revocation proceedings. The court therefore examined whether the grant should properly have been made and whether the defendants should bear the claimants’ costs.

1. Revocation and notice. The claimants were entitled to revocation and substantially succeeded, although the grant had been revoked by consent. Applications for grants are commonly made without notice in uncontroversial cases, but there is no general requirement that they be made without notice. In this case the contentious circumstances, serious allegations, the claimants’ status as three of the four executors, and the absence of any need to avoid notice required notice to be given. The urgency did not prevent at least informal notice.
2. Disclosure. The duty of full and frank disclosure applies to applications under the Non-Contentious Probate Rules 1987, including applications made without notice. The affidavit contained material and serious misrepresentations about refusal to co-operate, intermeddling, attempted misappropriation, and dishonesty in the Pakistani proceedings. The applicant should have distinguished facts from client instructions, disclosed the basis of allegations, and explained enquiries made about Pakistani law. The errors were not deliberate, but the grant could not properly have been made on that evidence.
3. Independence and notification. In a highly contentious estate dispute, the solicitor for one interested party was not an independent or impartial person suitable for appointment. The administrators’ failure to notify the claimants of the grant, in accordance with the third defendant’s wishes, confirmed that their position was untenable. The executors should have been informed promptly and supplied with the material relied upon.
4. Procedure and costs. The claimants were entitled to apply to the High Court for revocation rather than remain subject to the grant or first seek probate. The defendants were ordered to pay the claimants’ costs on the standard basis. The third defendant was also ordered to pay the claimants’ costs on the standard basis because she opposed a well-founded application and had requested that the grant be kept secret. No costs were ordered out of the estate. Indemnity costs were refused because, despite serious errors, the defendants had not intended to mislead and their conduct was in part understandable.
5. Registrar communications. It was improper for the first defendant to seek private answers from the registrar about the decision and the effect of evidence not before him. Such communications were inimical to the judicial process, and the registrar’s answers were disregarded.

First-instance decision. The judgment itself does not state any prior appellate history.