‘Contentious Probate Tactics – Reverse summary judgment v. claimants + CPR, r.24.6 to call their bluff & drive them into mediation.’

In Heyes v Holt, 2024 EWHC 779 Ch, HHJ Paul Matthews granted the defendant an order requiring the claimants to pay a sum of money into court, with the sanction of dismissal of the claim if this was not done within a specified time:

‘[37]. … CPR rule 24.6… provides: “When the court determines a summary judgment application it may— … (c) make its order subject to conditions in accordance with rule 3.1(3).” Rule 3.1(3) provides: “(3) When the court makes an order, it may – (a) make it subject to conditions, including a condition to pay a sum of money into court; and (b) specify the consequence of failure to comply with the order or a condition.” …

[39] In Gama Aviation (UK) Ltd v Taleveras Petroleum Trading DMCC [2019] EWCA Civ 119, Males LJ (with whom Hamblen LJ and Dame Elizabeth Gloster agreed) said: “43. … [T]here is a category of case where the defendant may have a real prospect of success, but where success is nevertheless improbable and a conditional order for the provision of security may be made. This is the typical case where a conditional order may be made requiring the provision of security for the full sum claimed or something approaching that sum.”
[40] Nevertheless, the court made clear that the caselaw had laid down certain principles to be observed in exercising this jurisdiction: “45. [1st where D] has a real prospect of successfully defending the claim, the court must not impose a condition requiring payment into court or the provision of security with which it is likely to be impossible for the defendant to comply … 46. [2nd] the burden is on [D] to establish on the balance of probabilities that it would be unable to comply with a condition requiring payment into court … 47. [3rd – D] must show, not only that it does not itself have the necessary funds, but that no such funds would be made available to it … 51. [4th] despite the fact that the Rules expressly contemplate the possibility of a payment condition being imposed, it is not incumbent on a defendant to a summary judgment application to adduce evidence about the resources available to it, at any rate in a case where no prior notice has been given that the claimant will be seeking a conditional order …54. [5th] the court’s power to make a conditional order on a summary judgment application is not limited to a case where it is improbable that the defence will succeed. Such an order may be appropriate in other circumstances, for example … if there is a history of failures to comply with orders of the court or there is a real doubt whether the party in question is conducting the litigation in good faith. However, the court needs to exercise caution before making a conditional order requiring a defendant who may have a good defence to provide security for all or most of the sum claimed as a condition of being allowed to defend … ”

In para [69] the learned judge directed:
‘For the reasons given above, (i) I dismiss the application for summary judgment, but conditionally on charges of various interests belonging to the claimants being made in favour of the defendant, or alternatively payment into court, in accordance with paragraphs 47-49 above; (ii) I will order a stay of the claim to allow for a second mediation; … I express the hope that the parties will be able to resolve their differences without the need for a lengthy and expensive trial.’
So, the Defendants have in effect called the claimant’s bluff. This case will now almost certainly settle in mediation.