Matthews v Matthews & Anor

Where a substantive family claim cannot fairly proceed because of uncertainty about the estate, inadequate preparation, defective notice, or a party’s representation, the court should adjourn the hearing and give directions ensuring a fair determination.

An application by solicitors to come off the record requires compliance with the mandatory notice requirement in CPR rule 42.3(2)(a). The court should also address any genuine concern about a litigant’s capacity to conduct proceedings personally. Proceedings should be issued and managed in the court appropriate to their value and complexity, with regard to proportionality and the overriding objective.

The claimant, the widow of the deceased, had applied under the Inheritance (Provision for Family and Dependants) Act 1975. The substantive hearing concerned the provision to be made from the deceased’s estate.

On the listed hearing date, there was uncertainty about whether the principal property was held as joint tenants or tenants in common, and therefore about the value of the estate. The respondents’ solicitors had applied the previous day to come off the record without giving the respondents notice. One respondent attended without representation and raised concerns about his ability to conduct the litigation because of acquired brain damage.

The central issue was whether the substantive claim could fairly and proportionately be determined that day.

1. Adjournment and transfer. The substantive hearing could not fairly proceed. The court lacked reliable information about the ownership of the principal property and the value of the estate. One respondent had unexpectedly become unrepresented, had not received notice of the application by his solicitors to come off the record, and had no copy of the substantial hearing bundle. The matter was accordingly adjourned and transferred to the Central London County Court for allocation to a circuit judge or district judge.
2. Notice to come off the record. CPR rule 42.3(2)(a) made it mandatory that notice of an application under the rule be given to the party for whom the solicitor was acting, unless the court directed otherwise. No such direction had been made. The solicitors’ failure to give notice was a serious procedural failure, and the outstanding application had to be considered at the directions hearing after proper notice to both respondents.
3. Representation and capacity. After determining the solicitors’ application, the allocated judge was directed to consider the representation of the respondent who attended in person, including whether his mental disability affected his capacity to represent himself and conduct the proceedings.
4. Future conduct and proportionality. The allocated judge was to give general directions, and the solicitor concerned was directed to attend personally because the circumstances raised unresolved questions. The court relied on the overriding objective in CPR rule 1 and strongly encouraged renewed mediation. The concern was that further costs and delay could become disproportionate to an estate estimated at between £350,000 and £450,000.

First-instance procedural decision. The intended substantive hearing was adjourned, and the proceedings were transferred to the Central London County Court for directions and allocation.