A claimant has been told she cannot pursue a probate claim for her late mother’s will after her solicitors missed crucial deadlines.

Master Teverson, ruling in Phipps v Goulbourne, said Derina Phipps had been ‘let down’ by south east firm Austen Jones Solicitors and that she could not be granted relief from sanctions. The master said the firm made the mistake of thinking that proceedings were served by the court and should have made the application for relief sooner.

Phipps filed a witness statement a week before the hearing saying she faced losing her mother’s house, but Teverson said this could not be a ‘determinative consideration’ that should change his view on denying relief.

The court heard that the claimant was seeking to propound a copy of her mother’s will after her death in 2020. Phipps was the sole beneficiary under this will. The claim was opposed by her late mother’s husband.

The claimant was issued with an unless order by the court last January giving her 28 days to issue and serve a probate action in the Chancery Division.

Emails exchanged between Austen Jones and the defendant’s solicitors suggested that the firm was expecting the claim form and particulars of claims to be served by the court. An unsealed copy of the claim form was sent to the defendant solicitors within the time allowed.

The parties spoke on the phone in March 2023 but the firm waited two months to send a follow-up email. Then in June the defendant solicitors wrote to Austen Jones stating that whilst the action might have been issued within the time specified in the unless order, it had not been served on time or at all.

The firm was given 14 days to apply for relief from sanction but this deadline was missed by more than two weeks.

In his witness statement to the court, Austen Jones managing director Ian Austen-Jones admitted that the breach of court orders had been ‘reasonably serious’ but argued it had not disrupted the litigation.

Teverson said the breach of the unless order was ‘serious and significant’, and compounded by not being promptly remedied. He said the firm’s mistaken belief that the claim form would be served by the court was not a good reason for default.

The claimant had tried to argue that opposing solicitors could have been more ‘collaborative’ during the litigation process, but the master said they were entitled to wait for the claim form to be served and were not under any duty to remind Austen Jones about deadlines.

‘The effect of granting the claimant relief from sanctions now would be to drive a coach and horses through the unless order,’ added the master.

 

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