No. FD17F00111
Neutral Citation Number: [2018] EWHC 906 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

IN THE MATTER OF THE INHERITANCE 
(PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975

Royal Courts of Justice

Wednesday, 11 April 2018

Before:

MR JUSTICE HOLMAN

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B E T W E E N :

	VIVIA MATTHEWS	Claimant

-  and  -

	  (1)  DELROY STEVEN MATTHEWS
	  (2)  NIGEL MATTHEWS	Respondents

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MS J. DE SOUZA (instructed by Lam & Meerabux Solicitors) appeared on behalf of the claimant.

THE FIRST DEFENDANT appeared in person.

MR J. HAMERTON-STOVE (counsel) appeared on behalf of Armstrong & Co.

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J U D G M E N T
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MR JUSTICE HOLMAN:

1	There was listed today, with one clear day allowed, the intended final substantive hearing of an application made pursuant to the Inheritance (Provision for Family and Dependants) Act 1975.  The case has been current for an appreciable period of time, and already disproportionate costs have been incurred.  I am accordingly very regretful that it is necessary for me to adjourn the substantive resolution altogether for reasons which I will shortly describe.

2	There is, indeed, considerable ambiguity today as to the true value of the net estate of the deceased.  The principal asset is a house at Comerford Road, London SE24, which the deceased owned jointly with one of his sons, Nigel Matthews.  Astonishingly, given that the case has come on for final substantive hearing today, there is a total lack of clarity in the documents in the bundle as to whether the deceased and Nigel owned that property under a joint tenancy or as tenants in common.  

3	The highest I can put it today (given that there is no legal representation by, or on behalf of, the estate and the executors) is that it seems to be implicit in the witness statements of Madeleine Elaine Bailey, dated 17 February 2017 and Imran Haider Khawaja, dated 20 February 2017 that that property was owned as tenants in common, so that, upon his death, the half share of the deceased did indeed form part of his own net estate.  On that basis, the net estate is of the order of £350,000 to £450,000, since, on the available valuation, a half-share in the house is worth somewhere over £400,000.  If, on the other hand, that property was owned as joint tenants, so that the whole house passed on the death of the deceased to his son, Nigel, then, frankly, the value of the net estate is negligible.  It consisted only of a few tens of thousands of pounds in savings, which will have been exhausted on a combination of funeral and administration expenses, and the minor pecuniary legacies in clause 4.2 of the will.  The language of clause 6.1 of the will itself tends to suggest that the deceased himself (and the draftsperson of the will) thought that the whole of Comerford Road would “pass to [Nigel] absolutely following my death” as he had “added his name to the title deeds of the property which I own with him…..”

4	The essential factual background for today’s purposes is as follows.  The deceased died in October 2016.  He was then aged 82.  From a previous marriage he had children including, but not limited to, his sons, Nigel Matthews and Delroy Steven Matthews.  The claimant is his widow.  She also had been previously married and has adult children of her own.  The claimant is now aged 65, so she was about 18 years younger than the deceased.  The claimant and the deceased had lived together from about 1999.  They actually married in July 2003.  So, by the time the deceased died, they had lived together for about 17 years and had been married to each other for about 13 years.  They were still living together at the date of the death.  

5	The last will of the deceased was made in June 2011, namely over five years before he actually died.  It deliberately makes very little provision for his wife/widow.  At clause 6.2 of the will, he stated why.  There is a factual dispute about some of the reasons which he gave, which will require to be considered at the substantive hearing.  One of the reasons is that “We have been married for a relatively short period of time”.  Of course, whether or not, by June 2011, it was appropriate to say that they had been married for a relatively short period of time, with every year that passed that he continued to live, the period of time became longer.

6	The claimant says that her own assets are very small indeed and that she, who is now aged 65 and has some health problems of her own, is now unable to work at all and that her sole source of income is the state pension.  Currently, she continues to live in the former matrimonial home at Comerford Road, but she has fairly and frankly accepted and said that that must be sold and she will move to more modest accommodation.  She seeks, however, that sufficient provision is made for her to enable her to buy some suitable, albeit more modest, accommodation outright.  Property particulars have been included in the bundle indicative of a range of purchase prices from about £170,000 to about £250,000.  

7	I now turn to the reason why it is quite impossible for me to deal with this case substantively today.  As recently as yesterday afternoon, 10 April 2018, a firm of solicitors called Armstrong & Co, and specifically a partner in the firm called Imran Khawaja, issued a formal application in this court to “be removed from the record as acting for the defendants in this matter”.  That application is supported by a statement of truth by Mr Khawaja in which he says in summary, first, that considerable fees and costs are outstanding to the firm from the defendants; and second, that there has been a complete failure by either defendant recently to give them any instructions.  As well as being beneficiaries the two defendants are the executors named in the will.

8	Mr Khawaja supported that statement by exhibiting three letters dated 14 February 2018, 16 March 2018 and 26 March 2018, to each of which he says he never had any response.  On the face of them, each of those letters are addressed to the brother and client, Nigel Matthews, at what I am told is his correct residential address at 37 Whinchat Road, London SE28 0DZ.  But each letter says under the signature strip “cc Delroy Matthews”, viz copied to Delroy Matthews.

9	Mr Delroy Matthews has personally attended at court today and, if I may respectfully say so, has engaged with me and the advocates with the utmost courtesy and consideration.  But he says that he arrived at court expecting to find Mr Khawaja or, at any rate, Armstrong & Co here to represent him.  He has resolutely denied on oath that he has ever seen or received any of those three letters to which I have referred.  

10	This led to further enquiries being made of Mr Khawaja by counsel, Mr James Hamerton-Stove, whom Armstrong & Co have instructed to represent them today.  As a result of those enquiries, Mr Khawaja made a further statement of truth during the lunch period today dated 11 April 2018, in which he says:

	“I confirm that the two letters sent to Mr Nigel Matthews dated 14 February and 16 March were also copied by post to Delroy Matthews at 71 Playgreen Way, London SE6 3HS.”  

11	I mention in passing that that part of Mr Khawaja’s statement made today makes no reference to the third of the letters, namely that of 26 March 2018.   Further, he sent with the statement just one letter dated 16 March 2018 which, on the face of it, is addressed directly to Mr Delroy S. Matthews at his address at 71 Playgreen Way, and purports to include with it a “copy letter to Nigel”.  The statement of Mr Khawaja today does not include with it any similar covering letter to Delroy Matthews dated on or about 14 February purporting to attach or enclose the letter to Nigel of 14 February.  That may, however, have been an oversight by Mr Khawaja, who clearly had to deal with this hurriedly over lunchtime today.

12	Mr Delroy Matthews has, however, gone into the witness box and sworn an oath, and adamantly maintains that he never saw any of the three letters that I have mentioned, which were sent to Nigel Matthews and purport to be copied to him.  Nor, he says, has he ever seen the letter which purports to have been sent directly to him of 16 March 2018 attached to Mr Khawaja’s statement of today.  Mr Delroy Matthews further says that he had been so concerned at the lack of information or communication from Mr Khawaja that, only yesterday, he personally went to the office of Armstrong & Co and left a letter with the secretary there.  He is not able to show me a copy of that letter here today, for he has it only in electronic form upon his computer, which is at home.

13	So the broad position of Mr Delroy Matthews today is one of some astonishment and concern that he finds himself here completely unrepresented today, when he was expecting to be represented.  Further, he is faced with the formal application notice issued by Armstrong & Co yesterday afternoon of which he was completely unaware. 

14	CPR rule 42.3(2)(a) is mandatory that, when an application is made under that rule, which is the rule in point, “notice of the application must be given to the party for whom the solicitor is acting, unless the court directs otherwise”.  The court has not directed otherwise, but Mr Hamerton-Stove frankly accepts that no notice whatsoever of the application had been given prior to his attendance at court today to Mr Delroy Matthews or, indeed, to Mr Nigel Matthews.  Indeed, it was only I myself who was able to hand a copy of the application notice to Mr Delroy Matthews after the hearing began, because there happened to be a spare copy on the court file.  So there has been complete failure by Armstrong & Co to comply with an obviously very important safeguard in the relevant rule.  They have, frankly, issued their application at the eleventh hour and failed to give the notice which the rule requires to their clients.

15	Interestingly, there is an email by Mr Khawaja dated 14 November 2017, and in today’s bundle at page 271, which relates to cancelling a booked appointment for mediation, which includes the following phrase:  “… our main client is unable to take time off work and we cannot proceed to mediation without him”.  It is agreed by all present today that the reference in that phrase to “main client” is a reference to Nigel Matthews, to whom indeed Mr Khawaja seems primarily to have directed his correspondence, which he merely copied on to Mr Delroy Matthews. 

16	Astonishingly, the will is nowhere to be found in the bundle, which runs to about 300 pages, which was prepared for today.  Even more astonishingly, in my relatively swift reading of that bundle before I came into court this morning, it was nowhere highlighted who the residuary beneficiary under this will is.  Indeed, paragraph 3 of a position statement prepared for today by Ms de Souza states “The deceased’s last will provides for his children to inherit their father’s estate.”

17	When the will was finally produced at about lunchtime today and I read it, I was frankly astonished to find that clause 5 bequeaths the entire residuary estate, not to Nigel and Delroy Matthews, but to Delroy Matthews alone.  The explanation for that rapidly follows in clause 6.1 of the will, namely that, during his lifetime, the deceased had “added” Nigel’s name to the title deeds of the property at Comerford Road.  So the scheme of the will seems to be, in broad terms, that, as Nigel had already been benefited in that way during the lifetime of the deceased, the deceased was now, as it were, “balancing” by bequeathing his residuary estate to Delroy.

18	As I mentioned some appreciable time ago, there is huge ambiguity here today as to whether or not there is any residuary estate of any significance, because of the uncertainty as to the legal title under which Comerford Road was held.  As I have said, if that was held as joint tenants, then it appears that there is no or negligible residuary estate, and, frankly, no or negligible assets against which the claimant can pursue her claim at all.  If, on the other hand, it was held as tenants in common, then there is indeed a residuary estate of some hundreds of thousands of pounds, but the sole beneficiary of that under the will is Mr Delroy Matthews.  

19	It is thus somewhat surprising that Mr Khawaja referred in that email of 14 November 2017 to Mr Nigel Matthews as being “our main client”, for the reality is that this entire claim can only realistically be focused on the residuary estate, which goes solely to Mr Delroy Matthews.  Even more astonishingly, it was only this afternoon when (having received the will by email during the lunchbreak) I referred to the provisions with regard to the residue, that Mr Delroy Matthews appeared to appreciate for the first time since his father died 18 months ago that the residue of the estate goes to him, and him alone.  

20	I now have to mention with tact and delicacy another aspect of this case.  Mr Delroy Matthews himself describes at paragraph 6 of his witness statement made on 6 June 2017 that he was involved in a serious car accident in 2000, from which he has suffered lasting brain damage.  He says that he suffers from dysphasia.  He says that later he began occupational therapy for speech and language.  He says that he is so disabled that he has never since been able to work and that he receives forms of disability related state benefits.

21	I have the utmost respect for Mr Delroy Matthews and I hope he will not take offence at what I am about to say.  He clearly has a grasp of some of the issues in these proceedings.  He has a very good grasp for dates.  He speaks, as I have said, with the utmost courtesy.  But, as I have also said, he simply had failed to appreciate right up to this afternoon that he himself is the residuary beneficiary under this will.  It may be that he does have sufficient capacity to instruct properly engaged and acting solicitors and counsel, but (and I put it no higher today) I do have reservations as to whether he has the mental capacity to represent himself as a litigant in person in these proceedings, by reason of the mental disability which he suffered as a result of his car accident.

22	All these reasons in combination, plus the fact that it has taken until 4.15 today to reach this point, mean that I cannot possibly deal with this matter substantively today for a whole range of reasons.  First, there is a huge ambiguity as to the legal position with regard to the house at Comerford Road and whether there is any money left in this estate at all.  Second, Mr Delroy Matthews has arrived at court today and found himself unrepresented, to his surprise, and faced with an application by his solicitors, which they should have served upon him, but have not, that they be removed from the record.  A bundle has been produced for me extending, as I have said, to about 300 pages.  There is not even a copy supplied to, or available for, Mr Delroy Matthews.  It would patently be an absolute travesty of justice for me to have embarked upon any substantive hearing of this matter today.

23	I have already indicated that, at its highest, the net value of this estate is somewhere in the range of £350,000 to £450,000.  Although these proceedings are obviously of the utmost importance to the claimant and to Mr Delroy Matthews, in particular, they involve in absolute terms what are, by modern standards, relatively low sums.  Frankly, at the level of the Family Division of the High Court, judges such as myself are more normally concerned with tens of millions of pounds, not a small number of hundreds of thousands of pounds.  This is a case which, frankly, should have been issued from the outset in the county court and should never have been issued in the High Court.  

24	If it had been possible to deal with it substantively today, of course I would gladly have done so.  But, as I am constrained to adjourn it for all the reasons I have given, I propose now to do what should have been done long ago, and that is transfer these proceedings to the country court sitting at the Central London County Court where they must be allocated, according to the resources of that court, to a circuit judge or district judge of that court.  

25	I propose to give various other directions, which are, I hope, self-explanatory.  The broad thrust of them is that there must be a directions hearing before the allocated circuit or district judge.  The first matter to be considered at that hearing is the application, which remains outstanding, of Armstrong & Co, which was issued yesterday and of which proper notice must now be given to Nigel and Delroy Matthews.  Once that has been ruled upon, the judge must give consideration to the representation of Delroy Matthews in the light of the ruling, and consider whether or not he has capacity or lacks capacity, as a result of the effects of his car accident, to represent himself and conduct these proceedings.  Then the judge must give directions generally for the future conduct of these proceedings.

26	There are unresolved issues as between Delroy Matthews, and maybe also Nigel Matthews, on the one hand, and Mr Imran Khawaja, on the other hand, for it seems to me that the facts that I have described throw up as many questions to Mr Khawaja as they did through counsel to Mr Delroy Matthews.  So I propose to direct that Mr Khawaja must personally attend the next hearing.  I shall direct that official transcripts are made at the expense of public funds of both the oral evidence which Mr Delroy Matthews gave today and also of this judgment, so that it is there and available as a narrative for the judge at the next hearing.

27	Finally, I wish to mention mediation.  It is right to say that there was a long period of adjournment during 2017 targeted upon mediation.  A date appears to have been identified of 15 November 2017.  A suitable venue was booked and had to be paid for, and a mediator was identified and agreed upon who, however, generously waived his fees when the mediation was cancelled at the very last moment.  Mr Delroy Matthews has said several times today that he was keen to attend the mediation and had set aside the day in question (15 November) for it.  Unfortunately, his brother, Nigel, who is apparently a long distance driver, was not available on 15 November and this led to a very late cancellation of that appointment.  

28	As this case is now going off again for a period, I wish very strongly indeed to stress to both parties (as will be recorded on the face of my formal order today) that this case urgently requires to be resolved before costs and delay become disproportionate.  In the exercise of my powers and duties under the overriding objective under rule 1 of the Civil Procedure Rules, I very strongly encourage all the parties to give fresh consideration to seeing if these issues cannot be resolved by mediation.  I am fearful that a considerable amount of money may yet be expended, which will become completely disproportionate to the size and value of the claim.