Hussain & Anor v Bank of Scotland Plc

A litigation friend’s authority ends when the protected party dies. A person who has not obtained a grant of representation has no standing to commence or continue proceedings for the deceased’s estate, and a later grant of letters of administration does not retrospectively validate proceedings already taken.

Permission to appeal obtained by a person without standing, and upon material deception that the party was alive, may be set aside for a compelling reason. The resulting appeal notice may be struck out. This does not itself render the lower court’s order a nullity; that order remains effective unless and until it is set aside by a competent court.

The Bank sought possession of a residential property charged to it by Mr Hussain. Mrs Mona Qutb had successfully set aside her transfer of the property to Mr Hussain, subject to the Bank’s charge. Newey J later made a possession order in the Bank’s favour, holding that Mrs Qutb was bound by the charge through consent and estoppel.

Mrs Qutb had died before the trial, but her son, Azam Qutb, continued to act as her litigation friend while representing that she remained alive. He issued the appeal notice and obtained permission to appeal on that false basis. The Bank applied to set aside permission and strike out the appeal. The central issue was whether Azam had standing to pursue an appeal for his late mother’s estate and whether the grant later obtained could cure the defect.

1. The court unanimously set aside permission to appeal, struck out the appeal notice, and dismissed the appeal. Azam ceased to be Mrs Qutb’s litigation friend when she died. There was then no protected party for the purposes of CPR 21, and no application had been made under CPR 19.8(1) for a person to represent her estate.

2. Azam had no standing at trial, when seeking permission, or when issuing the appeal notice to litigate for the estate. His later grant of letters of administration did not retrospectively confer that capacity or validate the earlier proceedings. The court applied Millburn-Snell & Ors v Evans [2011] EWCA Civ 577.

3. There was a compelling reason under CPR 52.9(2) to set aside permission. It would not have been granted had Arden LJ known that Mrs Qutb was dead and that Azam lacked standing. Azam had actively misled the court, the Bank and his advisers by asserting that she was alive. The appeal notice was also struck out under CPR 52.9(1)(a).

4. The order of Newey J was not a nullity merely because the litigation had been continued without proper authority. It remained valid and effective unless set aside by the Chancery Division or on a competent appeal. An adjournment could not alter the absence of a valid appeal and was refused.

• Court of Appeal (Civil Division). In [2012] EWCA Civ 264, the court set aside permission to appeal, struck out the appeal notice and dismissed the appeal because it had been pursued by a person without standing after the appellant’s death.
• High Court, Chancery Division. Newey J made a possession order for the Bank on 5 November 2010 and held that Mrs Qutb was bound by the Bank’s charge. That order remained effective because this appeal was not competently pursued.