The recent High Court case of Wickham v Riley & others  EWHC 3711 (Fam) highlights how the court can exercise its discretion when granting permission to bring a I(PFD)A 1975 claim out of time (s.4 I(PFD)A 1975) and as a further claim pursuant to CPR38.7.
The case is a useful reminder of the issues a court will take into account when considering whether to grant a claimant’s application to bring a I(PFD)A 1975 claim out of time. A charity should consider each case on its facts when deciding whether it should contest a claimant’s application to issue a I(PFD)A 1975 claim out of time.
Anthony John Wickham died on 13 May 2014 leaving a Will dated 1 April 2010. The gross value of the estate was c.£755,000 and the net value was c.£500,000. At the date of the hearing before Williams J on 23-25 November 2020, the estate available for distribution was reduced by the costs of the administration and proceedings. Alexander Wickham (“the Claimant”) together with his twin sister Isabelle Wickham (taken together “the Claimants”), issued a claim on 16 January 2017 by their litigation friend, Ruth Dore, under the I(PFD)A 1975 (at the time they were minors). The claim was defended by the personal representatives and the beneficiaries of the estate, including the deceased’s wife, who was the Claimants’ mother and the fifth defendant.
On 13 November 2018, the claim came before Cohen J and an order was made recording that all parties other than the fifth defendant had agreed terms to settle the claim (she wished to consider her tax position). Cohen J recorded that the deceased’s Will failed to make reasonable financial provision for the Claimants and that the court approved of the agreed terms.
On 21 and 23 January 2019, on the instigation of the fifth defendant, the Claimants, by then aged 18, respectively emailed the personal representatives’ solicitors to withdraw their claim. On 01 February 2019, the solicitors for the Claimants’ litigation friend issued an application notice asking the court to determine whether the Claimant remained a protected party. On 11 March 2019, the Claimants sent notices of discontinuance to the personal representatives’ solicitors.
On 13 June 2019, the matter came before Williams J on the application of the Claimants’ litigation friend to determine whether the Claimant had capacity to conduct the proceedings without a litigation friend and also whether the notice of discontinuance was effective. The Claimant had a diagnosis of autism spectrum disorder. Dr Chisholm, an Education and Child Psychologist based at the school where the Claimant was a pupil, concluded that he had capacity to conduct proceedings. The Claimant later changed his mind about discontinuance and, representing himself, pursuant to CPR 38.7, sought permission to bring a new claim. Isabelle Wickham indicated her wish to reinstate her claim but did not issue an application.
- The court’s decision
The court determined that the Claimant had capacity to conduct proceedings and the appointment of the litigation friend thereby ceased. The court granted the Claimant permission to bring a I(PFD)A 1975 claim out of time. The court also determined that, as CPR 38 does not provide any mechanism by which a claimant can withdraw a notice of discontinuance, the Claimant could not do so. However, CPR 38.7 provides a mechanism by which on application, the court can grant permission to issue a further claim.
The court first considered whether to grant the Claimant’s application to bring a I(PFD)A 1975 claim out of time. The court considered Lord Justice Floyd’s judgment in the Court of Appeal’s decision in Begum v Ahmed  EWCA Civ 1794. The following was relevant:
- The estate had not been distributed.
- A claim against the estate had been intimated for a very long time and had been subject to negotiations and subsequently proceedings since January 2017.
- The Claimant issued his notice of discontinuance following advice from the fifth defendant that to do so was more beneficial for her and ultimately for him. Whilst the Claimant had capacity, he had a degree of vulnerability and was reliant to an extent on the fifth defendant in respect of whom there was some conflict of interest.
- The Claimant had no other form of redress available to him.
- The Claimant had a realistic prospect of success. The terms of the agreed settlement supported that evaluation.
The court granted the Claimant permission to bring a I(PFD)A 1975 claim out of time.
The court then considered whether to grant the Claimant’s application to bring a further claim pursuant to CPR 38.7. The court considered the approach of HHJ Matthews in Ward v Hutt and others  1 WLR 1789, along with the general principles of the CPR. The following was relevant:
- The overriding objective to deal with cases justly.
- The limitation period under s.4 I(PFD)A 1975 is a purely discretionary one.
- The public interest in finality of litigation carried less weight because the Claimant’s discontinuance would have come as a surprise to the defendants.
- There was a clear explanation of the discontinuance and reintroduction of the claim, namely, the advice of the fifth defendant.
- The Claimant had a realistic prospect of success.
- The costs of a further tranche of the proceedings may approach or exceed the value of any award that the Claimant might achieve.
The court granted the Claimant permission to bring a further set of I(PFD)A 1975 proceedings pursuant to CPR 38.7, although the decision was “much finer”.
The court considered whether any conditions ought to be applied to the grant of permission to bring a further set of proceedings, in particular, that the Claimant pay the other parties’ costs. However, in practical terms, the imposition of such a condition would in effect create an absolute bar to the Claimant pursuing the claim as he was impecunious. Furthermore, the costs would need to be subject to detailed assessment and so no time limit for their payment could be imposed at that stage.
- Practical Points
The Claimant was a litigant-in-person and whilst he did not issue a formal application, file any documents for the hearing nor address the interpretation of the CPR or the tests for being granted leave to bring a second set of proceedings, the court nevertheless granted him permission. Represented parties need to be cognisant of the potential unpredictability of proceedings with a litigant(s)-in-person and how the court’s approach and/or decision(s) may take that into account.
Please follow the link to read the High Court decision in full: