Knowles v Knowles

When considering whether to extend time and grant permission to appeal against possession and strike-out orders, the appellate court may consider reliable medical evidence concerning a litigant’s disability, the resulting difficulties in conducting litigation, and the explanation for delay. It should also consider whether the proposed appeal has a real prospect of success. That prospect may arise where non-compliance is arguably neither deliberate nor contumelious, where material supplied may substantially answer disclosure or information requirements, and where the struck-out claim is reasonably arguable. Permission and extensions of time were granted, with execution of the possession order stayed pending the appeal.

After the appellant’s mother died, his sister claimed possession of the family home as beneficiary under her will. The appellant defended the claim on the grounds of constructive trust and proprietary estoppel, and also advanced a claim under the Inheritance Provision for Family Dependants Act 1975.

On 24 July 2006, the Liverpool County Court ordered possession and struck out the defence and counterclaim after failures concerning payment of a costs debt, disclosure and further information. The appellant later sought to suspend possession and appeal out of time. On 11 May 2007, HHJ Hodge QC refused to suspend possession. The central issue before the Court of Appeal was whether the appellant should receive permission and extensions of time to challenge both orders.

The application was granted. Lord Justice Rix gave the judgment, and Lord Justice Tuckey agreed.

1. Medical condition and delay. The Court of Appeal considered that the medical material then before it demonstrated severe brain damage and substantial disability. The appellant’s ability to speak fluently and with some lucidity did not resolve the question whether his condition materially affected his ability to conduct litigation. There was a real concern that the judge had not had the proper medical position before him or had not adequately addressed it as an explanation for the delay and procedural failures.
2. Prospects concerning procedural compliance. There was a real prospect that the appellant could show that failure to discharge the Mace and Jones debt by the required date was neither deliberate nor contumelious. Evidence indicated a substantial payment shortly before the possession condition took effect, followed by a later demand for a materially larger sum. The Court also considered that the eleven files served by the appellant might have gone substantially beyond a bare list of documents. Although the further information appeared inadequate, there was a real prospect that the appellant and his wife had done the best they could in the circumstances, contrary to the judge’s conclusion that the delay was intentional.
3. Prospects on the underlying claim. Although the evidence was limited, the proposed claims based on constructive trust, proprietary estoppel and the Inheritance Provision for Family Dependants Act 1975 were reasonably arguable in light of the appellant’s long-term disability and his mother’s care and support.
4. Orders. Time was extended and permission was granted to appeal the order of 24 July 2006, including the possession and strike-out orders. A further 17-day extension and permission were granted in respect of the order of 11 May 2007. Execution of the possession order was stayed until the appeal, and the notice of appeal concerning the July 2006 order was directed to be filed within 14 days.

1. Court of Appeal (Civil Division): In [2007] EWCA Civ 1179, permission to appeal and extensions of time were granted in respect of the orders made on 24 July 2006 and 11 May 2007. Execution of the possession order was stayed pending the appeal.
2. Liverpool County Court: On 11 May 2007, HHJ Hodge QC refused to suspend the possession order. The court had earlier ordered possession and struck out the defence and counterclaim on 24 July 2006.