Dellal v Dellal & Ors

Under section 10 of the Inheritance (Provision for Family and Dependants) Act 1975, a claim should not be summarily terminated merely because the claimant cannot yet identify every relevant disposition or prove the claim conclusively. Strike out is confined to claims that are legally unrecognisable, incoherent or abusive. The real-prospect test belongs principally to summary judgment.

Where disclosure may reveal whether a claim has a real prospect of success, the court may adjourn summary judgment and order focused disclosure. A claimant may plead alternative factual bases at an early stage where each has evidential support. Material non-disclosure on an application for service out does not necessarily require the order to be set aside if leave would have been granted had the omitted matters been disclosed.

The claimant, the widow of Jack Dellal, brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975. She alleged that assets had been transferred during the six years before Jack’s death in order to defeat her claim for reasonable financial provision.

The defendants applied to strike out the section 10 claim or obtain summary judgment. The second and seventh defendants also challenged orders permitting service out of the jurisdiction, alleging material non-disclosure. The central questions were whether the claim was legally recognisable, whether it had a real prospect of success before relevant disclosure, and whether the service-out orders should be set aside.

1. Strike out. The section 10 claim was not legally unrecognisable, incoherent or abusive. CPR 3.4(2)(a) was not the appropriate route for deciding serious arguments about whether the evidence gave the claimant a real prospect of success. The similar wording in CPR PD3A para 1.7 and FPR PD4A para 2.4 was an unhelpful curiosity and could not enlarge the limited strike-out jurisdiction identified in Wyatt v Vince [2015] UKSC 14.
2. Summary judgment. The governing question under CPR 24.2 was whether the claimant had a realistic, rather than fanciful, prospect of success and whether there was any other compelling reason for a trial. The court must avoid a mini-trial, but must consider evidence reasonably expected to become available. A mere hope that evidence may appear is insufficient; a reasonable evidential basis is required.
3. The claimant’s evidence of actual dispositions was thin but more than a speculative punt. It was therefore unjust to determine the claim before disclosure of documents capable of showing whether relevant transfers had been made. The summary-judgment applications were adjourned with liberty to restore. Specific disclosure under CPR 31.12 was ordered, limited to transfers of money or property worth £10,000 or more made during the relevant period and deriving directly from Jack or an entity under his de facto control.
4. The test for determining de facto control of an entity, including a trust, was the test stated in BJ v MJ (Financial Remedy: Overseas Trusts) [2011] EWHC 2708 (Fam).
5. It was not abusive, at that stage, for the claimant to advance different factual bases in separate proceedings in England and Switzerland. The Swiss proceedings sought information and preservation of documents and were not necessarily inconsistent with the English section 10 claim.
6. The orders permitting service out were upheld. The omitted conversation and Swiss proceedings ought to have been disclosed, but applying the approach in The Hida Maru [1981] 2 Lloyd’s Rep 510, leave would still have been granted had the full facts been disclosed. The defendants’ applications were dismissed to that extent.