Seale & Ors v Seale & Anor (Estate of Patrick Seale)

Successive interlocutory applications may constitute abuse of process where a party seeks to raise points that were available, and should have been raised, earlier. The position is especially strong where an earlier consent order expressly provides for the issue to be determined at trial. A subsequent application may nevertheless be permitted in exceptional circumstances, such as a significant change of circumstances or genuinely new evidence making summary disposal unanswerable.

Summary judgment requires a realistic prospect of success and no other compelling reason for trial. The court must avoid a mini-trial and consider evidence reasonably expected to be available at trial. Fact-sensitive issues concerning authority, ratification, undue influence and the appropriate parties should generally proceed to trial.

The proceedings concerned the estate of Patrick Seale, the validity of a notice severing the joint tenancy of the family home, and delivery up of artwork bequeathed under Patrick’s 2013 will.

Summary judgment had previously been entered against Rana. Following a consent order approved by Falk J, Alexander was permitted to defend the severance issue at trial. The claimants later applied to strike out or obtain summary judgment against Alexander. Rana separately sought to reinstate an undue influence defence and set aside or appeal the earlier order.

The issues were whether the claimants’ application was abusive, whether Alexander’s defence was suitable for summary determination, whether Rana had jurisdiction to reopen the earlier final order, and whether the artwork should be delivered up.

1. Abuse of process. The claimants’ application against Alexander was dismissed as an abuse of process. The principles in Koza Limited v Koza Altin Isletmeleri AS [2020] EWCA Civ 1018 apply to interlocutory applications, including successive strike-out and summary-judgment applications. A party should generally raise all reasonably available points at the first opportunity. A later application is abusive absent a significant change of circumstances or facts which could not reasonably have been discovered earlier.
2. The Falk J consent order expressly entitled Alexander to seek at trial a determination that the joint tenancy had not been severed. The claimants had already identified the arguments later advanced and had voluntarily agreed that the issue should proceed to trial. There had been no material change or newly discovered evidence. The application therefore amounted also to a collateral attack on the consent order.
3. Summary judgment and strike out. The alternative application failed on its merits. Applying the principles derived from Easyair Limited v Opal Telecom Limited [2009] EWHC 339 (Ch), approved in AC Ward & Son v Catlin (Five) Limited [2009] EWCA Civ 1098, the court must assess whether the defence has a realistic prospect of success without conducting a mini-trial, while considering evidence reasonably expected at trial. The authority to serve the notice, possible ratification, and the reliability and significance of the documentary and witness evidence raised triable issues.
4. Alexander’s presumed-undue-influence defence was not suitable for summary disposal. Whether there was a relationship of trust and confidence and whether severance of the joint tenancy was a transaction calling for explanation were fact-sensitive questions. His interest in the property and ability to obtain effective relief were sufficient to resist strike out.
5. Rana’s application was dismissed. The earlier Cousins Order was final. It could not be reopened under CPR r. 3.1(7), and the Master had no jurisdiction to grant permission to appeal another Master’s decision. Any challenge had to proceed by appeal, which was substantially out of time after her earlier appeal had been automatically struck out.
6. Rana was ordered to deliver up the artwork in her possession at the property, in good condition, on 14 days’ notice.

The judgment describes earlier summary judgment by Deputy Master Cousins, whose order was appealed by Rana and Alexander but whose appeals were automatically struck out for failure to comply with unless orders. A subsequent consent order approved by Falk J permitted Alexander to defend the severance issue at trial. This court dismissed the claimants’ later strike-out and summary-judgment application against Alexander and dismissed Rana’s applications to reopen the earlier order.