“THIS IS AN UNUSUAL PROBATE CLAIM IN THAT THE DECEASED SAYS SHE IS VERY MUCH ALIVE”: A CHAOTIC TRIAL WHERE NO-ONE SEEMS TO HAVE THE SAME PAGINATION IN THE BUNDLES: AND THATS NOT EVEN HALF OF THE PROBLEMS…

 The past few weeks have led to a number of cases about bundles. My working theory about trial and application bundles is that problematic bundles often reflect a  much deeper malaise in the case itself.   Support for that theory can be seen in the judgment of Deputy Master Linwood in Ashimola & Anor v Samuel & Anor [2025] EWHC 502 (Ch).   The judge had to deal with a very difficult set of facts and was hindered, considerably, by the manner in which the bundles were presented.

“I said to Mr Ebuzoeme that I could not follow his skeleton argument, despite spending considerable time trying to cross-refer, as his page references bore no resemblance to the trial bundle pages. “

THE CASE

The claimant brought an action to set aside a grant of probate of her estate.  Her argument was that she was “very much alive”.  The judge accepted her evidence on this.   However there were complex issues to be determined along the way.  These will be examined in later posts.   Today we are looking at the problems that the court had with the bundles.

THE JUDGE’S COMMENTS ON THE BUNDLES (AND A FEW MORE POINTS BESIDES)

The judge observed that they had “criticisms of the way in which the trial was conducted”.

1. 1. I appreciate that preparation for and conduct of a trial especially in situations as obtain here is rarely easy or straightforward. Trials frequently create substantial workloads, often with unexpected points of law, evidence or procedure arising both immediately before or during the trial. Various matters may at times not prepared as best as they could or should be. But that is litigation. I usually endeavour, on the basis that the legal teams and litigants in person are doing their very best, not to take points of procedure, preparation or practice unless there is material prejudice or it affects my consideration of the evidence, the weight I should attach to it and my judgment. But what happened here was substantially beyond the norm and needs to be set out as the background to my assessment of the evidence and determination of the issues.

1. 1. My concerns include:

(1) During the evidence of one witness I noticed a person at the back of the court gesticulating to that witness during her evidence. I stopped the hearing and requested the person to identify and explain himself. He did so. Initially he denied making hand gestures but then accepted he had done so, his intention being to get the witness to answer the question. I explained that conduct was wholly unacceptable. His fulsome apology was sincere. I said I would take it no further but any future instances of interfering with evidence would be met by that person’s removal from the court and reporting of them to their regulatory body.

(2) The trial bundles. The electronic version consists of 4 separate PDFs as apparently the total (only some 650 pages) was over size for transmission. That is easily remedied using appropriate software or drop box. The hard copy has 4 separate sections with a different index and numbering for each. It is difficult to navigate and follow. A hard copy of the authorities bundle was directed by me but not provided until I received that of the Defendants in time for the last day of trial. Chief Master Shuman in her Additional Order of 16^th October 2024 (“the Additional Order”) required the parties to cross reference the numerous witness statements to the documents. That was only done for some, but not all, of the statements, and then in part only.

(3) At the start of the trial on Wednesday 27^th November 2024 I said to Mr Ebuzoeme that I could not follow his skeleton argument, despite spending considerable time trying to cross-refer, as his page references bore no resemblance to the trial bundle pages. I asked him to insert the proper references and refile, hopefully over lunch that day. That did not happen then nor during trial but eventually on Monday 2^nd December 2024 a revised skeleton was filed by, I noted, Mr Tony Ashikodi which is of some concern. That new version still has 4 incorrect references, one reference removed and 3 new ones added.

(4) On the first day when cross examining the claimant’s witnesses it became clear Mr Ebuzoeme could not point them to whatever document he was referring to as the pagination of his bundle was wholly different to that of the trial bundle. I did not permit cross examination without the witness being taken to the document as unfair to the witness and Dr Kasi.

(5) The parties were directed to agree so far as possible a List of Issues, Chronology, List of Legal Principles, List of Persons and a Reading List. None were capable of agreement so I had numerous versions of those documents. This flies in the face of the Overriding Objective and lengthened an already compressed timetable.

(6) Mr Ebuzoeme in his skeleton argument complained that none of the witness statements served by the Claimants complied with PD57AC; they were “grossly non-compliant”. I pointed out to him that the like applied to the statements served by the Defendants, and that I was not going to review all parties’ statements during trial to ascertain the position and, if necessary, apply an appropriate sanction as that would only extend the trial if not result in another adjournment (the original trial listed for October 2024 having been adjourned.) Further, there could be serious prejudice to a party if the evidence of that witness was ruled impermissible.

(7) He also, again rightly, in his statement of Applicable Legal Principles, submitted that the claimants had not served notice challenging the authenticity of certain documents pursuant to CPR 32.19. I responded that the same applied to his clients and again it would not assist the proper running of this trial, nor would it be proportionate nor accord with the Overriding Objective to pursue that breach by both parties. Further, the indices to the trial bundles in the main helpfully indicate which party has produced each document and whether the authenticity is disputed – therefore the parties here proceeded on a “shared assumption” – see the note at CPR 32.19.1 referring to the decision of Mr Richard Salter KC sitting as a Deputy Judge of the High Court McGann v Bisping [2017] EWHC 2951 (Comm).

(8) I have mentioned proportionality or rather lack of it. The equity in the Property according to the HMRC Schedule IHT421 filed by Ms Samuel is about £172,000 but that is subject to at least one charge besides the mortgage the value of which is not known. Apparently the mortgage is not currently being paid and possession proceedings may have been or are about to be commenced, although there was no independent evidence of this before me. Both parties at my request filed current summaries of costs in Form N260. Those costs total approximately £151,000 and so almost equal the remaining equity and may by now exceed it, so are disproportionate.

(9) When trial resumed there was no trial bundle for the last remaining witness, Mr Tony Ashikodi, to use. Mr Ebuzoeme was not able to source a copy quickly so I brought up the four PDFs on my laptop and provided that to the witness so the evidence could continue.