KAREN PEGLER & Ors v TIMOTHY BRUCE MCDONALD & Anor

An informal application may be dismissed for failure to comply with an extended civil restraint order and ordinary procedural requirements. Even where those defects are put aside, a claim should proceed to trial where it discloses a recognised cause of action and the evidence requires determination at a hearing. Summary judgment requires the applicant to show that the claim has no real, as opposed to fanciful, prospect of success, and the court must avoid conducting a mini-trial.

Recusal is governed by the objective test of whether a fair-minded and informed observer would conclude that there was a real possibility of bias. A litigant’s criticism of the judge, dissatisfaction with earlier rulings, or preference for another judge does not itself establish apparent bias. A repeat application for interlocutory relief ordinarily requires material new facts or a change of circumstances.

The claimants seek the removal of the first defendant as executor of his late brother’s will under section 50 of the Administration of Justice Act 1985. After earlier applications for an adjournment and a Beddoe order were dismissed, and an extended civil restraint order was imposed, the defendant made an informal application for summary dismissal of the claim, recusal of the judge, or a later trial start time.

The application was made without the prescribed form and fee, apparently without service on the other parties, and without compliance with the applicable extended civil restraint order procedure. The judge nevertheless considered the substance because of the proximity of the trial. The issues were whether the claim should be summarily disposed of, whether recusal was required, and whether the trial should be adjourned or its start time changed.

1. Summary dismissal. The informal application was automatically dismissed under paragraph 3.3 of CPR Practice Direction 3C because the defendant had not complied with the extended civil restraint order procedure. The application also failed procedurally because it was not made on form N244, the fee was unpaid, and service under CPR rule 39.8 had not been shown.
2. The claim form disclosed a cause of action under section 50 of the Administration of Justice Act 1985, and the supporting evidence set out alleged conduct capable of engaging the court’s statutory powers. The factual dispute required a hearing, so there was no basis for striking out under CPR rule 3.4(2)(a) or (b). The allegations against the claimants and their solicitors did not make the statement of case itself an abuse of process.
3. On summary judgment, the defendant bore the burden of showing that the claimants had no real prospect of success. The relevant prospect had to be realistic rather than fanciful. The court was not to conduct a mini-trial. The defendant’s assertions did not satisfy that high threshold, and the claim was required to proceed to trial.
4. Recusal. The applicable test was whether all the circumstances would lead a fair-minded and informed observer, knowing the relevant facts, to conclude that there was a real possibility of bias. The defendant’s disagreement with earlier decisions, allegations of judicial hostility, and criticism of the judge did not meet that objective standard. The judge therefore could not recuse himself.
5. Trial timing. The request for a later start would effectively require an adjournment. No material new facts or change of circumstances justified a second application for the same interlocutory relief. The defendant’s age and ill-health did not establish a medical inability to participate, and personal inconvenience did not justify vacating the fixed trial date. The application would therefore have failed on its merits in any event.
6. Any further application in the litigation had to comply fully with the relevant procedural rules, including the extended civil restraint order.

The judgment states that the earlier judgment on the defendant’s applications was [2022] EWHC 2069 (Ch). No application for permission to appeal those decisions was known to have been made.