Jabeen v Lloyds TSB Bank Plc

On a renewed application for permission to appeal, the applicant must show a real prospect that the decision below was wrong. A party cannot obtain a rehearing merely because it chose not to attend trial or cross-examine evidence. The judge may accept evidence given on oath or affirmation when it is not challenged. In disputes between rival claimants about whether property belongs beneficially to an estate, an executor is generally entitled to remain neutral, since the rival claimants must establish their own beneficial rights. An executor uncertain about adverse claims may seek directions from Chancery under the Beddoes jurisdiction, but that route does not make neutrality an error where it was not invoked.

The application arose from inheritance family provision proceedings concerning properties registered in the deceased’s name. The trial judge, HHJ Behrens, determined a preliminary issue concerning beneficial ownership and proprietary interests, making declarations in favour of the first and second claimants. Several defendants were absent from the trial, and Lloyds TSB Bank Plc, the executor, remained neutral. The judge refused permission to appeal on 31 May 2012. Arden LJ subsequently refused permission and a stay. The renewed application concerned whether the lack of cross-examination justified a rehearing, whether the judge had wrongly applied the law, and whether the executor was obliged to contest the claims.

Lord Justice Mummery refused the renewed application for permission to appeal.

1. Permission threshold. The applicant had to show a real prospect that the decision below was wrong. That required a properly arguable error, such as findings of fact made without evidence, a misunderstanding of the law, or a failure properly to apply the law to the facts. The application did not meet that threshold (see para [9]).
2. Uncontested evidence. Where parties do not attend trial, give evidence, or arrange representation to challenge the opposing evidence, the judge is entitled to accept evidence given on affirmation or oath. The absence of cross-examination in those circumstances is a consequence of the parties’ conduct, not an error by the judge requiring a retrial (see para [9]).
3. Executor’s position. In rival claims concerning whether property forms part of an estate, an executor will often properly remain neutral. The rival claimants must establish their competing beneficial rights, while the executor’s function is to distribute the estate once identified. The court did not accept that the bank’s neutrality provided a ground for challenging the judgment. Counsel’s reliance on Re Galloway [1982] 1 WLR 756 did not establish that the executor was obliged to contest the claims (see para [10]).
4. Directions to an executor. Where an executor is doubtful about adverse claims, the executor may seek directions from the Chancery Court under the Beddoes jurisdiction. The court may direct further investigation, require the claim to be contested, or permit it to be conceded, thereby protecting the executor against later criticism. That jurisdiction had not been invoked and did not alter the result (see para [10]).
5. The judge’s findings were based on evidence which he was entitled to accept, and no arguable error in the application of resulting trusts, constructive trusts, or proprietary estoppel was shown. The proposed appeal was therefore hopeless, and the application was refused (see para [11]).

• Court of Appeal (Civil Division): Arden LJ refused permission to appeal and a stay. On the renewed application, Mummery LJ refused permission: [2013] EWCA Civ 201.
• Leeds District Registry: HHJ Behrens gave judgments on 31 May 2012 concerning beneficial ownership and refused permission to appeal.