Recent guidance on the extension of time to bring a 1975 Act claim
Section 4 of the 1975 Act provides that an application shall not, except with the permission of the court, be made after 6 months from the date on which representation is taken out.
Earlier this year, in Cowan v Foreman  EWHC 349, Mostyn J refused permission to extend time in an application which was 17 months late and commented that the use of standstill agreements must come to an end. The Court of Appeal has overturned that decision and stated that:
- Section 4 is designed to bring a measure of certainty for personal representatives and beneficiaries alike;
- When determining an application under s.4 the court must consider all of the relevant circumstances of the case and the factors which were highlighted in Berger v Berger  EWCA Civ 1305;
- To have regard to the overriding objective or the approach to relief against sanctions when exercising the discretion under section 4 “involves conflating issues that, if they are related, are at best distant cousins.”;
- Whilst standstill agreements are not binding on the court, the court is keen to encourage pre-action without prejudice negotiations;
- Where there is a properly evidenced agreement to which no objection has been taken by the executors and beneficiaries, it is unlikely that in the ordinary way, a judge would dismiss an application for an extension of time;
- There should be clear written agreement setting out the terms/duration of such an agreement including each of the potential parties;
- In the event that proceedings have, in due course to be issued, the court should be presented with a consent application for permission to be granted notwithstanding that six months has elapsed.
In the absence of a clear written agreement setting out the terms/duration of such an agreement and including each of the potential parties, or even in circumstances where the client would prefer to adopt a belt and braces approach, the appropriate course would be to issue proceedings and apply for a stay, whether by consent or otherwise.
The full judgment can be found here: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1336.html
Disclaimer: This post is for information purposes only. It does not provide legal advice and no liability is accepted for the accuracy or correctness of the post, or for the consequence of relying on it, by any member of Chambers or Chambers as a whole.