The historical reputation of the North East in chancery may have been forged by Lord Eldon, whose retirement as Lord Chancellor coincided with a request by an MP, Michael Angelo Taylor, for an account of all his judgements outstanding for the past 18 years; Lord Eldon took the view that it was better to make no decision than come to the wrong decision, although he also had to contend with the vicissitudes of the mental state of the King, George III, the ambitions of the Regent and the fact that he had little assistance in his judicial work as the office of Vice Chancellor was not created until the backlog in hearing dates was some 13 years.

With an introduction which, I hope, must convince the most critical court user of the more benevolent legal landscape we currently enjoy, the chancery judges and administration are keen not to rest on our laurels. This is the first of what is intended to be a series of articles to keep practitioners abreast of developments in the chancery courts in Newcastle, both High Court and County Court, which cover an area from the border with Scotland to Teesside.

The most recent development is the arrival of two new specialist judges, HHJ Davis-White QC, who is the lead chancery judge, and who is cross ticketed to do mercantile and TCC work, and  HHJ Klein, who is a chancery judge and the lead the mercantile judge cross ticketed to do TCC work. The TCC cross ticketed specialist judge continues to be HH Judge Raeside QC. 

Judge Davis-White QC is a former chair of the Chancery Bar Association who practised from London chambers and, before his appointment, sat as a Deputy High Court Judge, was appointed to the Commercial Court of the British Virgin Islands and was a senior decision maker for the Guernsey Financial Services Commission. He is the co-author of a number of leading texts including Kerr and Hunter on Receivers and Directors Disqualification and Insolvency Restrictions.

Judge Klein was based at chambers in Leeds and had a broad based chancery practice. He was appointed a recorder in 2010 and a Deputy High Court Judge assigned to the Chancery Division in 2013.  Well known to local practitioners, he was a contributor to the Landlord and Tenant Fact Book as well as the Solicitors Journal and Estates Gazette and an author of Butterworths Property Insolvency.

Both have expressed a commitment to sitting in Newcastle in their listed weeks and, subject to availability, to deal with any ad hoc listings. The current listing arrangements in Newcastle are as follows:

19th to 21st April 2017	HHJ Davis-White QC (special arrangement)
24th to 28th April 2017	HHJ Klein
8th to 12th May 2017	HHJ Davis-White QC
12th to 16th June 2017	Vice Chancellor
26th to 30th June 2017	HHJ Davis-White QC
17th to 21st July 2017	Vice Chancellor
17th to 25th July 2017	HHJ Klein (7 day Mercantile trial)
16th to 20th October 2017	HHJ Raeside QC
13th to 17th November 2017	HHJ Davis-White QC
11th to 15th December 2017	HHJ Klein

The chancery District Judges are DJs Atherton, Loomba, Morgan, Pescod, Temple and myself. We continue to operate our DJ multi-track trials list for 7 weeks of the year which has proved popular and has facilitated both expedited hearings and the setting of hearing dates at an early stage in the case, often at the case management conference. We have a dedicated drop box for skeleton arguments, costs budgets and other similar documents to be placed before the court for hearings which avoids the problem of e-mails not reaching the judge. The address is newcastlechancery@hmcts.gsi.gov.uk; please use this for all communications for the judge but not for those to the court administration such as listing availability. Additionally, solicitors can use the drop box to contact me, as lead chancery judge, in order to raise difficulties they have encountered with the administration.

That there have been administrative problems is undeniable but in order to counter this the court service have provided a dedicated chancery clerk, Helen Tait, who is the first point of contact for solicitors and bar clerks. She can be contacted via email at civil@newcastle.countycourt.gsi.gov.uk and by telephone on 0191 201 2061. To ensure swift action when contacting the court please highlight ‘CHANCERY’ on all correspondence. The preferred method of communication would be via email. Insolvency is in the process of moving from enforcement to the civil team and will also be overseen by Helen. More generic or unresolved problems should be referred to Donna Stafford, the Acting Court Delivery Manager. She is contactable via email at donna.stafford2@hmcts.gsi.gov.uk.

And finally, a bit of topical law. The Supreme Court handed down judgment in Ilott v The Blue Cross and others [2017] EWCA Civ 797 on 15 March 2017. Practitioners will remember that in Ilott, District Judge Million, as he then was, found in an Inheritance Act claim that the will of the deceased did not make reasonable provision for her adult daughter who had been estranged from her mother for 26 years but lived in straitened circumstances; the beneficiaries were all charities. That decision was successfully appealed to Eleanor King J but restored by the Court of Appeal on the basis that the decision of the District Judge was not plainly wrong. The case was remitted to District Judge Million to assess the level of provision. This too was subject to a series of appeal, some successful, which culminated in the recent decision of the Supreme Court. It set aside the assessment made by the Court of Appeal and restored District Judge Million’s assessment of what constituted reasonable provision on the basis that there was no error in his approach or reasoning.

The case has been regarded as important not only because it is the first occasion upon which the Inheritance (Provision for Family and Dependants) Act 1975 has been considered at the highest level, but also because some see it as support for a more liberal approach to interfering with testamentary freedom. Anecdotally, we seem to be receiving more claims from estranged adult children than was the case pre Ilott. It is important to remember that the Supreme Court did not and could not rule on whether any award should have been made as that issue was not before them.

Lady Hale, with whom Lord Kerr and Lord Wilson agreed, added to what was otherwise a unanimous judgement, that the case raised issues as to the nature of family obligations, the relationship between such obligations and the state and the freedom of testamentary disposition. She pointed out that in a case such as Ilott a respectable case could be made for the court having declined to make any order in favour of the daughter, or for an order having the dual benefits of giving the applicant what she needed and saving the public purse the most money, the Court of Appeal’s solution in this case, or the sort of order which the District Judge made which capitalised his assessment of her basic maintenance needs but limited to take account of the estrangement. She indicated that she had raised these issues to demonstrate the unsatisfactory state of the present law due to the lack of guidance as to the factors to be taken into account in deciding whether an adult child is deserving or underserving of reasonable maintenance. As Black LJ said in the first set of appeals dealing with the question as to whether any award should be made: It seems to me that the jurisprudence reveals a struggle to articulate, for the benefit of the parties in the particular case and of practitioners, how that value judgment has been, or should be, made on any given facts. [2011] EWCA Civ 346 para 88. Accordingly, whilst the lack of guidance produces uncertainty for the practitioner when assessing the merits of Ilott type claims, what is clear is that the decision does not herald a liberalisation of the court’s interference with testamentary freedom but is an example of a value judgment which the individual judge made on the particular facts. As Sir Nicholas Wall P commented in the first set of appeals, had the District Judge dismissed the claim I doubt very much whether the appellant would have secured the reversal of that dismissal on appeal.

District Judge Kramer
17 March 2017