Wickham v Riley & Ors

A claimant who has validly discontinued proceedings cannot withdraw the notice of discontinuance under CPR merely because the decision later appears unwise. The available route is an application for permission to issue a further claim under CPR 38.7.

Permission to issue a fresh claim and permission to apply out of time under section 4 of the Inheritance (Provision for Family and Dependants) Act 1975 involve related but distinct discretionary exercises. The court must consider the statutory purpose, finality, delay, prejudice, the explanation for discontinuance, the merits and the overriding objective. A vulnerable young adult, influenced by a carer with conflicting interests, may establish sufficient grounds where refusal would leave him without an effective remedy and the estate has not been distributed.

The claimant and his twin sister brought claims under the Inheritance (Provision for Family and Dependants) Act 1975 concerning provision from their deceased father’s estate. A proposed settlement was approved in principle, but it did not take effect because the fifth defendant did not sign the agreed terms.

The claimant and his sister subsequently served notices of discontinuance. The claimant later sought to pursue the claim again. The court had to determine his litigation capacity when discontinuing, whether the discontinuance was effective, whether it could be withdrawn, and whether he should receive permission to issue a further claim under CPR 38.7 and to apply after expiry of the statutory six-month period.

1. Capacity. The claimant had litigation capacity when he served the notice of discontinuance. The statutory presumption of capacity was supported by the expert evidence and the surrounding evidence. His reliance on his mother’s advice, and the fact that the decision was unwise, did not establish duress, undue influence or incapacity. An unwise decision does not, by itself, demonstrate lack of capacity.
2. Discontinuance. The notices were effective. Any failure to attach the other claimant’s consent was a minor procedural defect which did not invalidate the notices under CPR 3.10. Under CPR 38.5, the proceedings ended against the defendants when notice was served, subject to costs under CPR 38.6.
3. Further proceedings. CPR 38 contains no mechanism enabling a claimant to withdraw a notice of discontinuance. The relevant route is an application for permission to issue a further claim under CPR 38.7. The court considered the application in the light of the overriding objective, finality in litigation, the explanation for reintroducing the claim, the merits and the consequences of further delay and costs.
4. Extension of time. Section 4 of the Inheritance (Provision for Family and Dependants) Act 1975 confers an unfettered discretion, to be exercised judicially and consistently with its purpose. The claimant bears a substantial burden. Relevant considerations included promptness, negotiations, distribution of the estate, absence of alternative redress, prejudice, the statutory purpose and the realistic prospects of the underlying claim. The court should not conduct a mini-trial where prospects depend on disputed facts.
5. Result. Permission was granted both to apply out of time and to issue a further claim. The claimant’s vulnerability, the conflict between his interests and those of his mother, the explanation for discontinuance, the arguable merits and the absence of an effective alternative remedy outweighed the prejudice caused by further delay and expense. No costs condition was imposed because it would effectively bar an impecunious claimant from pursuing the claim. Case-management directions were required for reissue and a final hearing.

First-instance procedural determination in the High Court (Family Division). The judgment records earlier interlocutory directions and an order made by Cohen J on 13 November 2018, but no appeal from another court.