A litigant in person’s contentious probate claim, part of which was dismissed by a High Court master as “no more than tittle tattle”, needs a proper hearing, a judge has decided.
Andrew Sutcliffe QC, sitting as a High Court judge, said Master Price should not have treated the defendants’ application as being for summary judgment when it was for a strike-out.
Mr Sutcliffe said that the master did not “expressly consider the fairness” to the claimant of doing this and dispensing with the procedural requirements involved.
“It seems that what the Master did was to apply a test on the basis of an application not before him in circumstances where he had neither explicitly exercised his discretion to treat the application before him as including an application for summary judgment nor explained to the claimant the consequences of the course he proposed to take.
“The fact that the claimant was a litigant in person cannot be ignored. She was in my view entitled to have proper notice of the fact that the defendants were applying for summary judgment.”
The court heard in St Clair v King and another  EWHC 682 (Ch) that Anna St Clair was a step-daughter of Jean Lech, who died in 2012. After Ms St Clair’s father died in 2008, Ms Lech disinherited both Ms St Clair and her daughter, replacing them as beneficiaries by her nephew and carer.
Ms St Clair disputed the validity of the will disinheriting her on a variety of grounds, including undue influence, testamentary incapacity, want of knowledge and approval, and fraud.
Ms St Clair, who was not represented before Master Price but was represented by a direct access barrister before the High Court, argued that the master should not have struck out her claims on the basis that they had no real prospect of success but instead should have adjourned the hearing to give her an opportunity to obtain legal advice.
Her counsel also complained that it was unfair for the claimant to be handed a 15-page skeleton argument by the defendant’s barrister “as she went into court”, adding to the unfairness of asking a litigant in person to deal with the application at such short notice”.
Mr Sutcliffe said it was “crucial” to the outcome of the appeal that the master proceeded on the basis on an application for summary judgment under Rule 24.2, when an application to strike out under Rule 3.4 was before him.
Instead of concluding that the particulars of claim disclosed no reasonable grounds for bringing them, the master applied the “summary judgment test”, that they did not have any realistic prospect of success.
Mr Sutcliffe said it was “obvious” that the claimant was not given the 14 days’ notice of a summary judgment she was entitled to and he was not persuaded that she had a “proper appreciation” of the fact she was facing one.
The judge accepted counsel for the claimant’s submission that to proceed on the basis that the defendants had made a summary judgment application amounted to a “serious procedural irregularity”, and that there should be a rehearing of the case, rather than a review.
Mr Sutcliffe disagreed that Ms St Clair’s claims of undue influence could be regarded as “fanciful” and lacking any prospect of success “without hearing the evidence to be called at trial”. He made a similar finding regarding the claimant’s want of knowledge and approval, and lack of testamentary capacity claims.
The judge allowed the claimant to amend her pleadings to include an argument based on mutual wills and breach of promise, but refused to allow a fraud claim to be included.
Mr Sutcliffe allowed Ms St Clair’s appeal and said he would hear from the parties on the question of costs.
He said that in light of this decision and because her claims of undue influence, want of knowledge and approval, and lack of testamentary capacity were permitted to proceed, it was not “appropriate” for the award of costs on the indemnity basis to stand”.