Re D [2016] EWCOP 35

In the matter of: IN THE MATTER OF D



D (by his litigation friend, the Official Solicitor)


This was an appeal of an order allowing an applicant (I) for an order authorising her to execute a statutory will to be released from the obligation to serve the papers on someone entitled to a half share of the estate on intestacy and who would be disinherited if the statutory will was executed.

D was 30 and lived with his mother, I. D had cerebral palsy resulting from complications at birth and had been awarded damages of £3.1m in an action for clinical negligence. I was D’s deputy for property and affairs.

D’s father (F) had no contact with D for over 20 years and probably lived in Jamaica. D had siblings of the whole blood and of both the maternal half-blood and also the paternal half-blood (although no information was provided regarding their identities or whereabouts).

D was intestate and on his death his estate would be divided equally between I and F. D’s GP confirmed that D lacked capacity to make a will. I applied for an order authorising her to execute a statutory will in which it was proposed that D would:

  1. (a) appoint I and his brother and two maternal siblings to be his executors and trustees;
  2. (b) give a life interest in his house to I and on her death, the property to pass to his three brothers in equal shares;
  3. (c) give 2% of his residuary estate to charity; and
  4. (d) give the remaining 98% of the residue to I and D’s brothers in equal shares.

I also applied for an order dispensing with the obligation to serve the documents on F.

On 21 August 2015, District Judge Louise Relph made an order joining D to the proceedings and appointing the Official Solicitor (OS) to act as his litigation friend, giving directions that I serve all the papers on OS within five days and providing that ‘unless the OS objects within 21 days of instruction, service upon F is dispensed with’. The OS was served and objected to the application to dispense with service.

In January 2016, during a telephone hearing, District Judge Payne ordered that service upon F could be dispensed with, the OS had leave to appeal and if the OS wished the parties should agree a note of the judgment.

On appeal, the OS contended that District Judge Payne was wrong in principle to dispense with service because:

  1. (1) The judge’s reasoning focused on D’s best interests to the exclusion of other factors. Specifically, there was no mention of the overriding objective, the need to achieve procedural fairness, risk of proceeding on untested evidence, or the potential consequences to F of dispensing with service. Nor was there mention of the fact that D’s best interests might be said to include not disinheriting his intestacy beneficiaries without giving them an adequate opportunity to be heard.
  2. (2) There was no evidence before the judge on what searches had been carried out to trace F. In the age of Facebook, even modest internet searches might assist in finding a relative.
  3. (3) The judge was wrong to balance the cost of seeking to trace F against his views of the merits of the case.
  4. a) Any assessment of the merits was based on untested evidence and where the person who might be in a position to challenge the account given by I had not been told of the application.
  5. b) The cost of searching for F was wrongly given undue prominence.
  6. i) Any statutory will was likely to involve a financial cost to D.
  7. ii) The judge’s conclusion that in an estate of c£3m expending a ‘four-figure sum’ on searches would be disproportionate was unsustainable.
  8. iii) Any concern about the costs of tracing F could have been addressed by a method short of dispensing with service. OS suggested that the judge could impose a cap on spending in the search for F or could have directed substituted service but the judge failed to consider this.
  9. c) The ‘hassle’ said to have been experienced by I after D’s damages award did not involve visits, letters or calls. The judge was wrong to give weight to the fact that serving F would cause I anxiety and would not be in D’s best interests. A risk of anxiety should not override the other factors requiring service.

The OS also invited the court to approve or amend proposed guidance on the issue.


  1. 1) Guidance approved and applied.
  2. 2) This was by no means an exceptional case and there was no compelling reason why service on F should be dispensed with.
  3. 3) It was not an urgent case. There was no emergency or need to act with great speed that would justify the court departing from its usual practice of joining as a respondent someone who is materially and adversely affected by the application.
  4. 4) The judge was unimpressed with the efforts to locate F and agreed with counsel for OS that in the age of social media, a few online enquiries may assist in finding F.
  5. 5) The district judge had given undue prominence to the cost of searching for F. The concern over a four-figure sum was unjustified given the enormousness of the principle at stake and the extent of F’s disinheritance if the court approved the statutory will.
  6. 6) There was no suggestion that F had ever been physically violent towards I or D and the hassle that I claimed to have experienced was from members of his family rather than F himself (Re AB [2014] COPLR 381 distinguished).
  7. 7) From time to time, but only very rarely, there will be exceptional cases when it may be appropriate to dispense with service on someone who is materially and adversely affected by a substantive application (referred to In re B (Court of Protection: Notice of Proceedings) [1987] 1 WLR 552). Generally however, by agreeing not to hear the other side because it would be more convenient or less discomforting for the applicant, or cheaper for the person paying the bill, the court would be failing in its duty to manage conflicts of interest and to provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law.
  8. 8) Appeal allowed and order set aside. I directed to take steps to locate F. No limit imposed on the amount to be spent on such enquiries.
  9. 9) Regarding costs, whilst I’s conduct in applying to dispense with service in the first place may have been unreasonable, she succeeded on that application twice and for various reasons it would be unfair to order I to pay her own costs in respect of the application. I’s and OS’s costs to be assessed on the standard basis and paid from D’s estate.

SENIOR JUDGE LUSH: [1] This is an appeal against an order made on 7 January 2016 by District Judge Michael Payne, who allowed an applicant for an order authorising her to execute a statutory will to be released from the obligation to serve the papers on someone who is currently entitled to a half share …
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Counsel Details

Barbara Rich (5 Stone Buildings, Lincoln’s Inn, London WC2A 3XT, tel 020 7242 6201, e-mail instructed by Irwin Mitchell LLP (40 Holborn Viaduct, London EC1N 2PZ, tel 020 7404 3600) for the applicant.

David Rees (5 Stone Buildings, Lincoln’s Inn, London WC2A 3XT, tel 020 7242 6201, e-mail instructed by the Official Solicitor (Victory House, 30-34 Kingsway, London WC2B 6EX, e-mail for the respondent.

Cases Referenced

Legislation Referenced

  • Administration of Justice Act 1969
  • Court of Protection Rules 2007, r3, r19, r25, r26, r34, r38, r87, r140, r156, r159, Practice Direction 9F
  • European Convention on Human Rights 1950, Art 6
  • Mental Capacity Act 2005, s18(1)
  • Mental Health Act 1983
  • Mental Heath Act 1959