Case No: A3/2014/0274
Neutral Citation Number: [2016] EWCA Civ 218
IN THE COURT OF APPEAL (CHANCERY DIVISION DIVISION)
ON APPEAL FROM NEWCASTLE-UPON-TYNE REGISTRY
(LOWER COURT JUDGE: HIS HONOUR JUDGE KAYE QC)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 27th January 2016

Before:

LORD JUSTICE LONGMORE
LORD JUSTICE LEWISON
&
LORD JUSTICE KITCHIN

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Between:

	HUTCHINSON	
Appellant	
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GRANT	

Respondent	

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The Appellant appeared in person, assisted by Miss Lisa Barber as McKenzie Friend

MR STEPHEN FLETCHER (instructed by Hathaways) appeared on behalf of the Respondent

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Judgment (Approved)
LORD JUSTICE LEWISON: 
1.	Mr Grant and Mrs Hutchinson are brother and sister.  Their father died intestate in 2009 and after a number of skirmishes they jointly took out letters of administration in respect of his estate.  The estate is a small one, consisting essentially of a house in Gateshead and some money, jewellery and personal possessions.  

2.	Unfortunately disputes arose between the joint administrators, the details of which do not matter for present purposes, but which I shall have to come back to in connection with a point that has been made by Miss Barber on Mr Grant’s behalf.  At some point in 2012 Mrs Hutchinson took out a claim under section 50 of the Administration of Estates Act 1985 for Mr Grant to be removed as a joint administrator of the estate.  Mr Grant took out a parallel claim under section 50 asking for Mrs Hutchinson to be removed as an administrator of the estate.

3.	After various procedural vicissitudes those applications came before HHJ Kaye QC in Newcastle on 19 November 2013.  Mr Grant represented himself, I think accompanied by Miss Barber, and Mrs Hutchinson was represented by her counsel, Mr Fletcher.  As I understand what Mr Grant has told us this afternoon, HHJ Kaye encouraged the parties to go outside court and to discuss a possible agreed way forward.  

4.	There was discussion between the parties and it was agreed in principle that both Mr Grant and Mrs Hutchinson should be replaced by an independent solicitor, a Mr Blackburn, who prepared a statement expressing willingness to be the administrator of the estate.  However, there had been legal costs expended both on the application and the counterclaim and the parties could not agree how those costs should be dealt with.

5.	The judge indicated that, since the costs had not been agreed, he would hear at least some part of proceedings.  What he said in paragraph 20 of his judgment was this:  

“The parties, however, did not agree what should be done about the cost of the proceedings.  Accordingly, I therefore had, it seems to me, to hear some part of the proceedings, at least in order to resolve the question of costs.”

6.	Mr Grant wanted to ventilate a number of his complaints against Mrs Hutchinson in order to persuade the judge that she, rather than he, should be removed as administrator.  The judge said in paragraph 30 that that was not a case for determination of those grievances and he made it clear that “those grievances can still be determined at a later date”.  Indeed, paragraph 4 of the order which he eventually made expressly preserved Mr Grant’s ability to pursue any claim for maladministration which he may have against Mrs Hutchinson, so the suggestion which was made this afternoon that the judge struck out those claims seems to be ill founded.  

7.	Nevertheless, Mr Grant applied for an adjournment, which the judge refused.  Following the refusal of the adjournment, Mr Grant left court and the judge proceeded to determine the application made by Mrs Hutchinson for Mr Grant’s removal.  He decided that Mr Grant should indeed be removed and he made an order to that effect, at the same time dismissing Mr Grant’s counterclaim for the removal of Mrs Hutchinson.

8.	Mr Grant then applied for permission to appeal, raising a number of different grounds.  That application was considered by Briggs LJ.  He made an order on 21 July 2014 refusing permission to appeal against the judge’s refusal of the adjournment and then continuing:  

“On the judge’s decision to remove only the appellant and not the respondent as administrators of the estate, permission to appeal granted but only on the question whether there was an agreement for the removal of both administrators and the substitution of an independent administrator, to which the judge should have adhered.”

9.	That then is the only issue before us this afternoon.  The basic principle is clear.  In BCT Software Solutions Ltd v C Brewer & Sons Ltd [2004] CPR 2 at paragraph 6 Mummery LJ said:  

“In my judgment, in all but straightforward compromises, which are, in general, unlikely to involve him, a judge is entitled to say to the parties ‘If you have not reached an agreement on costs, you have not settled your dispute. The action must go on, unless your compromise covers costs as well.’”

10.	Since the parties in the present case have not agreed the question of costs, the action as a whole had not been compromised.  Nevertheless, I would accept that if Mr Grant had been led to believe by the judge before he left court that both he and his sister would be replaced by an independent administrator, there may been unfairness amounting to procedural irregularity if the judge then went back on what he had led Mr Grant to believe.

11.	So it is necessary to look at what the judge said in the course of his preliminary judgment when Mr Grant was still in court when he decided the question of an adjournment.  In paragraph 19 he refers to the fact that there had been what he called “at least some kind of agreement this morning” in which both Mr Grant and his sister recognised they ought to be removed and that Mr Blackburn ought to replace them.  As I have said, the judge continued in paragraph 20:  

“The parties, however, did not agree what should be done about the cost of the proceedings.  Accordingly, I therefore had, it seems to me, to hear some part of the proceedings, at least in order to resolve the question of costs.”

12.	He then distinguished between the costs of the application under section 50 of the Administration of Justice Act 1985 and wider costs relating to the administration of the estate.  In paragraph 23 the judge said this:  

“Despite the fact that Mr Grant and Mr Fletcher were able to agree that Mr Blackburn should take over, as I say, they were not able to agree the costs.  I therefore had to decide who should bear the costs or whether no order should be made or whatever.  As I say, they cannot agree.  To that end, I therefore embarked on the hearing of the case.”

13.	Finally, the judge then returned to the point at paragraph 29 and again reiterated the fact that there was no agreement about costs. He then continued, in a very important paragraph:  

“30.  This shows, with great respect to Mr Grant, he totally misconceived the nature of these proceedings, despite my attempt to explain to him many times, no doubt despite his colleague’s attempt to do so, that it is not a case for determination of those grievances; those grievances can still be determined at a later date.  The only question is, what should I decide about the future representation of this estate?  Accordingly, it seems to me that this is something I could be capable of doing, as I pointed out to both sides yesterday, within a very, very short time.  The real issue, without wishing to get to the point where I have even decided it, the real issue, it seems to me, is, does Mrs Hutchinson remain in place or does some third party, Mr Blackburn, come into place?  That is the issue, and that is the issue I propose to decide.  I also propose to decide what to do about the costs.”

14.	In paragraph 31 he then said that if the parties cannot agree on the costs “I shall have to continue to hear the case”.  In my judgment, the judge made it quite clear, particularly in paragraph 30 of his judgment, that he would proceed to determine whether Mr Hutchinson should remain in place or whether she should be replaced by Mr Blackburn.  That was a live issue and the judge said in terms that that was the issue he proposed to decide.  

15.	It seems to me that somebody listening carefully to the judge’s judgment could have been in no doubt that that is what the judge was going to decide; and there could have been no expectation that the judge was simply going to follow the partial agreement which had been made between Mr Grant and Mr Fletcher which agreed the replacement of both administrators in principle but had not agreed the question of costs.

16.	Since the parties had not agreed the question of costs, in accordance with the general principle I have mentioned the applications under section 50 remained live.  It was therefore Mr Grant’s choice to remove himself from court at the end of the judge’s preliminary judgment.  I do consider that the judge made any procedural error.  He explained as clearly as he could the shape that the continuing proceedings would have and it was up to Mr Grant to decide for himself whether to participate in them any further.

17.	For those reasons, I would dismiss the appeal.

LORD JUSTICE LONGMORE:

18.	I agree.

LORD JUSTICE KITCHIN: 

19.	I also agree.

Order:  Application refused