MICHAEL WILSON AND PARTNERS LIMITED v JOHN FORSTER EMMOTT AND OTHERS

An order appointing an executor to represent a deceased defendant’s estate in litigation should not be set aside or varied where the appointment is legally proper and no substantive defect is established. The power under CPR 3.1(7) is exercised, broadly, where the earlier order was made by mistake or obtained by fraud. An application seeking disclosure of supporting documents may be premature if brought before a reasonable opportunity for voluntary provision has expired. Costs depend on the substance and timing of the relief sought, not merely on the later production of documents.

The claimant applied to set aside or vary an earlier without-notice order appointing an executor to represent the estate of a deceased defendant. It also sought access to the documents supporting that order and an indemnity costs order.

The court considered whether the appointment was valid, whether the application was premature, and how costs should be dealt with after the requested documents were provided during the application process.

1. Application to set aside or vary. CPR 3.1(7) permits the court to set aside a previous order. The relevant approach is that the power should generally be exercised where the order was made by mistake or obtained by fraud. The claimant’s challenge had no substantive basis.
2. Representation of the estate. It was common ground that the appointee was the deceased’s executor and that an executor has duties and may be appointed to represent the estate in litigation. Re Lovett supported the conclusion that proceedings concerning estate assets may properly be brought against executors before probate has been taken out. The order therefore required no variation or discharge on that ground.
3. Documents. The defendants could have provided the supporting material more promptly. However, the application was premature on the evidence, and the documents were supplied after service of the application. That limited success did not outweigh the fact that the principal relief, setting aside or varying the order, was bound to fail.
4. Costs. No order was made as to the costs occasioned by the application.