A case that threw a wrecking ball at the practice of lawyers making stand-still agreements over late claims could be challenged in the Court of Appeal.
The claimant in Cowan v Foreman filed her application under the Inheritance Act 17 months late, prompting Mr Justice Mostyn to refuse permission. The Gazette understands her lawyers have now sought permission to appeal.
The case was of wider interest because Mostyn J criticised ‘standstill’ agreements between lawyers that allow for a time extension beyond the six months set out in the act.
The issue was further complicated by Mostyn J saying his decision was consistent with the overriding objective on rule compliance in Civil Procedure Rules.
But in a subsequent case, Bhusate, Chief Master Marsh dismissed the use of CPR when considering discretionary powers in the Inheritance Act.
‘To do so, I suggest, involves conflating issues that, if they are related, are at best distant cousins,’ he added.
In Bhusate the court granted permission to bring the claim under the Inheritance Act despite it being made more than 25 years after the limit. Chief Master Marsh said the claimant was ‘effectively powerless’ to do anything sooner in the absence of agreement or engagement by her stepchildren.
Paula Myers, partner with national firm Irwin Mitchell, said the law needs clarifying. She predicted: ‘It is possible that [Cowan] could even end up at the Supreme Court because of its clear condemnation of stand-still agreements which have been widely used for years.
‘Litigation is costly for parties, both emotionally and financially, and Mr Justice Mostyn’s point that ‘a moratorium privately agreed after the time limit has already expired should never in the future rank as a good reason for delay’ is a bold statement that the sector cannot ignore.’
Geoffrey Kertesz, partner and head of will and trust disputes team at London firm BDB Pitmans, said: ‘It is reassuring to see the court adopting a practical, common sense approach to Inheritance Act claims brought out of time, even when brought over 25 years out of time.
‘The Bhusate judgment reaffirms established principles, which will make it easier for lawyers to advise clients considering such claims. This makes dispute resolution that much more possible which, in turn, furthers the overriding objective of dealing with claims effectively in terms of time and cost.’