In the recent case of Bhusate v Patel, the claimant made her claim against her late husband’s estate an extraordinary 25 years and nine months after the expiration of the six month deadline. On an instinctive basis many would say, as the defendants argued, that it was far too late for the claimant to make an application. However, perhaps surprisingly, the Court allowed the application, illustrating an important lesson that charities will want to take note of. Many would dismiss an application made so late out of hand. However, the power to allow such applications remains in the hands of the Court and charities should stay vigilant as to the possibility of the Court allowing an application long after the six-month window has elapsed. In this case, the Court allowed the claimant to make her application so significantly out of time because, among other things, she was able to explain that the delay was partly down to the actions of the defendants. The Court also recognised that that if permission was not granted it would leave her homeless and without any other remedy.
This principle that discretion over time limits is a matter for the Court – and not interested parties – to determine was again highlighted in the recent case of Cowan v Foreman. Here, the deceased died on 9 April 2016 and a grant of representation was obtained on 16 December 2016, meaning the six-month time limit expired on 16 June 2017. The parties entered into a standstill agreement on 25 January 2018, with the defendant’s solicitors stating their clients would ‘not take a point on the six month deadline having passed pending receipt of a letter of claim.’ However, Mr Justice Mostyn took a very dim view of this approach, finding that ‘it is not for the parties to give away time that belongs to the Court’ and the application was refused.
Although the use of standstill agreements is common, and in the right context they may be entirely appropriate, we would not recommend that parties use them to try to “stop” the six-month clock from running in 1975 Act claims: such applications are between the Court and the applicant, and seeking to oust the Court’s involvement risks incurring the wrath of the judiciary and significant disadvantage as a consequence. A better approach would be for a party to protect its position by issuing proceedings ‘in time’ and then agreeing (with the Court’s permission) a temporary ‘stay’ or suspension of proceedings to enable settlement or other discussions to take place.
If you would like to read more about these two cases and the Court’s justification for their decision, Leticia Jennings and Victoria Bos have compiled an article examining the approach in each of these cases which was published in our Summer 2019 Charity and Social Enterprise Update.
The full article can be found here.
All content on this page is correct as of July 8, 2019.