KAREN PEGLER & Ors. v TIMOTHY BRUCE MCDONALD & Anor.

An adjournment application is determined by asking whether proceeding with the trial would be fair in all the circumstances. The enquiry is fact-sensitive and does not involve mechanically applying a checklist. Medical grounds require sufficiently detailed, independent professional evidence addressing the condition, its effect on participation and prognosis. A late wish to obtain legal representation, or time for unrelated third parties to consider allegations, will not ordinarily justify breaking a trial fixture. A Beddoe order is unavailable in a beneficiary dispute between beneficiaries and personal representatives, because the court cannot ordinarily determine in advance whether the representative has acted unreasonably or for personal benefit. Persistent totally without-merit claims or applications may justify an extended civil restraint order.

The claimants, beneficiaries under the will of Clive McDonald, sought the passing over or removal of the defendants as personal representatives. The first defendant, who had not applied for probate and had entered a caveat, applied to adjourn the trial listed for 14 September 2022. He relied on illness, alleged police and legal consideration of his claims, and a possible wish to instruct counsel.

He also sought a Beddoe order concerning the costs of the proceedings. The court decided both applications on paper. It further considered whether the defendant’s repeated totally without-merit claims and applications justified an extended civil restraint order.

1. Adjournment. The application was dismissed as totally without merit. The governing question was whether a trial proceeding on the listed date would be fair in all the circumstances. The assessment was fact-sensitive. Although the inability of a party to attend through illness may be highly material, the court had to consider the evidence and the practical circumstances of the particular case, applying Bilta (UK) Ltd v Tradition Financial Services Ltd [2021] EWCA Civ 221.
2. The medical evidence was inadequate. Following Levy v Ellis-Carr [2012] EWHC 63 (Ch), the evidence should identify the medical attendant, explain familiarity with the condition, identify the features preventing participation, provide a reasoned prognosis and give confidence that the opinion is independent and based on proper examination. A photograph and the defendant’s own assertion did not meet those requirements. In any event, the stated recovery period ended well before trial, and the evidence did not show that the defendant could not participate or instruct another person.
3. The asserted need for police or lawyers in other jurisdictions to consider allegations was not a proper basis for adjourning a civil claim. Nor did the defendant’s late wish to preserve the possibility of briefing counsel justify breaking the fixture, particularly after more than a year in which he could have obtained representation.
4. Beddoe order. The application was dismissed as totally without merit. Under the Trustee Act 2000, sections 31 and 35(1), and the related costs rules, a personal representative may ordinarily obtain protection for properly incurred litigation costs. But a Beddoe order is not available in a beneficiary dispute, where the beneficiaries challenge the personal representative’s conduct. Whether the representative acted unreasonably or for personal benefit will ordinarily be determined only when the claim concludes. Costs should therefore follow the event rather than come from the estate: Lines v Wilcox [2019] WTLR 927.
5. Civil restraint order. The defendant had persistently made claims and applications which were totally without merit. An extended civil restraint order was therefore made for two years in the High Court and County Court, but not in the Court of Appeal or Supreme Court. The order required permission before bringing claims or applications within its scope, while preserving the ability to seek permission to appeal the present order.

First-instance applications decided on paper. The judgment records that Zacaroli J refused the first defendant permission to appeal against an order of DJ Watkins on 1 October 2021, and directed that the claim be relisted. The present judgment determined the subsequent applications for an adjournment and a Beddoe order.