For the first time a contentious probate trial occurred remotely using Microsoft Teams videoconferencing.
In Coles v Reynolds & Anor  EWHC 2151 (Ch) (07 August 2020): http://www.bailii.org/ew/cases/EWHC/Ch/2020/2151.html Matthews HHJ dismissed Teresa Coles’ claim that her sister Heather Reynolds exercised undue influence on their mother to procure the assignment of a half share in the family home to Mrs Reynolds, and also wrongly procured the execution of a will in her favour. The learned judge also dismissed Coles’ allegations that the deceased did not know or approve of the contents of the will.
As I conclude in my article, “Judicial-ENE and the ‘New Normal’”, which is being published by Trusts & Trustees (Oxford University Press) in the forthcoming Issue 9: https://academic.oup.com/tandt/pages/About
‘Use of [Judicial Early Neutral Evaluation] JENE as a case-management tool is likely to become routine at the first case-management conference where for example, one party has proposed JENE, and another has refused consent because he prefers mediation. Whereas mediation requires consent, JENE does not, and the court has the power at the first CMC to order a stay during which the parties must:
(i) take stock; and
(ii) each carry out a reality-check,
i.e. before substantial costs are incurred in preparing for trial.
JENE is also likely to be at the centre of judicial case-management long after the pandemic has ended, not because solicitors and their lay clients suddenly underwent a Damascene conversion on the way to the Rolls Building while wearing face masks, but because the benefits of the process are plain common sense.’
Where a binary outcome on liability can open the door to settlement in relation to quantum, relief, and costs, JENE should be considered.
In the context of trust and estate disputes, unless:
(i) all pivotal issues surrounding liability have been resolved and agreed; and
(ii) where the interests of minor and unborn beneficiaries are involved, a representation order is or can be obtained beforehand,
it is hard to imagine why a case would not benefit from JENE.
However, most Chancery judges will be wary about the evaluation of rights under a trust or estate which impacts upon the interests of unborn and minor beneficiaries who are not represented before them. Trustees have, ‘traditionally had the duty of safeguarding the interests of unborn or otherwise absent beneficiaries and can be required to present argument on behalf of them, notably in a case in which no beneficiary in a given class is willing to participate.’ (Lewin on Trusts, 20th Edition, Volume II, paragraph 39-054). In such cases, the court ‘has jurisdiction to approve a compromise of a claim about property subject to a trust in which a representation order has been made under Part 19, rule 19.7, of the Civil Procedure Rules,’ (Lewin, paragraph 53-006), and can approve the terms of any settlement which results from a JENE provided:
(i) a representation order was obtained beforehand; and
(ii) if it is satisfied that the settlement is for the benefit of all represented parties, CPR,r.19.7(5) and (6).
Unless a representation order can be obtained, JENE is not a practical option where the interests of minor and unborn beneficiaries are involved. Therefore, an application for JENE in these circumstances is likely to fail.
Subject to that caveat, while remote hearings are more challenging and tiring for all involved than hearings in person, I predict that JENE hearings (which can be imposed without consent) will be conducted remotely, even after the pandemic has ended, i.e. if there are costs-saving and other potential benefits in having a remote hearing.
The article also discusses FDR. Family practitioners should be vigilant, as it is possible, for the reasons argued in my article, that the foundation already exists for ordering a mandatory FDR. However, this will require a test case.
For more information about advocacy in remote hearings and trials please visit the ‘Advocacy in remote hearings’ pageat www.ihtbar.com.
About the author
LL.M (Exon), of Lincoln’s Inn and the Middle Temple, Barrister-at-law, Solicitor of the Supreme Court of England and Wales (non-practising but remaining on the Roll), TEP, SCMA Accredited Mediation Advocate, Chambers of Ian Mayes QC, 1 Essex Court, Temple, London EC4Y 9AR (www.ihtbar.com). I specialise in will, trust, and inheritance disputes. I also undertake breach of fiduciary duty, civil fraud, and professional negligence claims. I am a registered Public Access Barrister and am authorised by the Bar Standards Board to conduct litigation. I am the author of the first edition of the ‘Contentious Probate Handbook – Practice and Precedents’ (published by the Law Society in October 2016), and of the ‘Contentious Trusts Handbook – Practice and Precedents’ (published by the Law Society in July 2020), and a member of: STEP (full member); the Chancery Bar Association; the Professional Negligence Bar Association; and of the Institute of Art & Law in London, where I am studying for a Diploma in Art Law.