Neutral Citation Number: [2008] EWHC 374 (QB)
Case No: CC/2007/PTA/0383
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

ON APPEAL FROM

THE EDMONTON COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29/02/2008 

Before :

THE HONOURABLE MR JUSTICE WYN WILLIAMS
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Between :
	
ANTHONY PAUL CAUDLE
	
Claimant/ Appellant	
	- and -		
	
LD LAW LTD	
Defendant/ Respondent	

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Mr Jonathan Miller (instructed by Messrs Barnes & Partners Solcitors) 
for the Claimant/ Appellant
Mrs Constance Mahoney instructed by and for the Defendant/ Respondent

Hearing dates : 20 February 2008
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Judgment

Mr Justice Wyn Williams : 

1.	By a Claim Form issued on 22 May 2007 Mr. Anthony Caudle, the Claimant, commenced proceedings against LD Law Ltd, the Defendant, in which he claimed relief in the following terms:
“The Claimant is a qualifying person entitled to make an application for the grant of Letters of Administration of the estate of Late Sarah Caudle. The Defendant has in its possession documents necessary for the proper administration of the said estate, believed to include the death certificate, funeral account, bank statements, building society passbooks, credit cards statements, wage slips with tax reference, utility and other bills, and documents relating to insurance policies, pension plan and other assets. The Defendant has wrongly retained the said documents and converted them to its own use and the Claimant seeks an Order for the delivery up of the said documents and such other property of the estate as in the Defendant’s position or control.” 
2.	On 8 June 2007 His Honour Judge Riddell, sitting in the Edmonton County Court, heard an application with two limbs made by the Claimant. The first limb of the application was for a declaration that the Defendant had no lien over the documents in its possession and which were particularised both in the Claim Form and more specifically in the Skeleton Argument produced on behalf of the Claimant. The second limb was for an order that the Defendant should deliver up those documents to the Claimant’s solicitors. The Learned Judge acceded to the claim for the declaration but he refused to make an order for delivery of the documents in question. Rather, he dismissed the claim for delivery up of those documents. Additionally the Judge ordered the Claimant to pay to the Defendant costs which he assessed in the sum of £2,700.
3.	The Claimant, hereinafter referred to as the Appellant, appeals to this Court with the permission of Burton J against those parts of the order of the learned Judge which were adverse to him. It is common ground, however, that the appeal on the issue of costs can succeed only if the substantive appeal succeeds.
4.	The relevant background is as follows. The Appellant and Sarah Caudle deceased had, for a period of time, been married. One child, Adam, was born to the Deceased during the course of the marriage. In 1998 the Appellant and Deceased separated and, subsequently, they divorced.
5.	At least some aspects of the divorce were acrimonious. Further, as I understand it, there were contested hearings about the child Adam and, in particular, about where he should reside. On 9 January 2004 a Judge in Chelmsford County Court made an Order that he should reside with the Appellant.
6.	The Deceased died on 26 January 2007. In her matrimonial proceedings against the Appellant and, indeed, possibly, in other forms of proceedings she had instructed the Respondent to act on her behalf. As its name implies LD Law Ltd is a company which provides legal services. At the date of her death the deceased was indebted to the Respondent in the sum of £1,633.90. That sum was owed in respect of legal work carried out on behalf of the Deceased and, as I understand it, the Respondent had obtained a judgment in respect of that debt.
7.	Following the deceased’s death her parents, Mr and Mrs Camp, made an appointment to see Mr Michael Casson, a solicitor and consultant of the Respondent. At the appointment they brought with them various papers belonging to the Deceased’s estate. The evidence is not precise about the nature of some of the documentation or how it came to be in the possession of Mr. and Mrs. Camp but it is common ground that I should proceed on the basis that the vast majority of the papers, at least, relate to the deceased’s financial affairs and that they came into existence prior to her death. The papers were delivered to Mr Casson because Mr and Mrs Camp wished him to act for them in obtaining letters of administration to the estate of the Deceased.
8.	The Deceased died intestate. Adam, her son, is her sole beneficiary. The persons entitled to apply for letters of administration are those set out in the Non-Contentious Probate Rules 1987. Mr. and Mrs Camp are persons entitled to apply but, as will become clear, they are not the first persons so entitled in order of priority.
9.	Following the appointment with Mr and Mrs Camp, Mr Casson set about carrying out work with a view to applying for letters of administration. Before his work was completed, however, the Appellant made contact with him. It suffices that I say that the Appellant probably asserted that he was entitled to apply for letters of administration.
10.	On 28 March 2007 Mr Casson wrote to the Appellant. The material parts of the letter read: -
“I write to advise that together with assistance from the Probate Registry, I have reviewed who may apply for Letters of Administration to Sarah’s Estate and the position appears to be this. Firstly we are agreed that Adam is the sole beneficiary of the Estate, but as he is not yet of the age of 18, it would be yourself who, as the person with parental responsibility for Adam, will need to apply. However, because Adam is under 18, at least two administrators will be needed and the second administrator should be the next permitted representative, who will be one of Sarah’s parents. 
Having made preliminary enquiries, I am in a position to apply for a Grant of Letters of Administration and also to market the property at 190 Hollifield. I should be grateful if you will confirm that you consent to act as administrator and I will then send you the appropriate documentation, including the draft Oath and copies of the draft account on the basis of the information received.   
……………
If, however, you do not wish to act as Sarah’s administrator, please confirm the position to us, as it may, in those circumstances, be necessary to apply for an Order that Mr and Mrs Camp continue to make application for the Grant of Letters of Administration.”  
11.	On 12 April 2007 solicitors instructed by the Appellant replied. They asserted that the Appellant was the only person entitled to apply for a grant of letters of administration, that he intended to apply for a grant and ask a partner of the firm of solicitors who acted for him to act as second administrator and, that being so, they asked the Respondent to deliver to them the papers which had been delivered by Mr and Mrs Camp to the Respondent so as to enable them to begin the process of applying for letters of administration.
12.	In fact, as I have said, the Appellant was not the only person entitled to apply for letters of administration. Mr and Mrs Camp were also entitled to apply. However under the 1987 Rules the Appellant’s entitlement to a grant had priority over the entitlement of Mr and Mrs Camp.
13.	The Respondent’s reply to the letter of 12 April was a letter of 19 April. It confirmed that the Respondent was in possession of “papers relating to the Estate” and it asserted that the Respondent enjoyed a lien over the papers in respect of the unpaid judgment debt.
14.	Between 19 April 2007 and the issue of these proceedings the Appellants’ solicitors and the Respondent debated, in correspondence, the legal issues surrounding the Appellant’s request for the papers and the Respondent’s assertion of a lien. They also explored possible bases upon which the Respondent would be prepared to deliver the papers to the Appellant’s solicitors.
15.	It is also to be observed that during this period the Respondent did deliver to the Appellant’s solicitors (or make arrangements for the delivery of) items of personal property which had been owned by the Deceased. They did that because they asserted no lien over such items and, presumably, because they believed that in the absence of a lien the Appellant was entitled to possession of the items.
16.	As I have said these proceedings were issued on 22 May 2007. In fact the Appellant had issued an application for interim relief prior to that date. The application was due to be heard on 25 May 2007 but, in the event, it was not. On 24 May 2007 the Respondent wrote to the Appellant’s solicitors. It indicated that one of the grounds upon which the application for interim relief would be opposed was that the Appellant “has no locus standi to make any Application on behalf of the deceased’s estate and will not have any such locus until [he] had been granted Letters of Administration.”  As I understand it, this was the first time that this point had been taken during the course of the correspondence between solicitors. Before the hearing on 8 June 2007 the parties put in evidence and exhibited the correspondence which had been generated between the solicitors.
17.	At the conclusion of the hearing on 8 June 2007 the learned Judge gave a full, careful and reasoned judgment as to why it was that he was granting the Appellant a declaration that no lien existed over the papers and also why, nonetheless, he was refusing the application for delivery up and dismissing that aspect of the claim. It seems clear from the judgment that at the hearing the Respondent, through its Counsel, Mrs. Mahoney, defended the Appellant’s application on the basis that it had a lien over the relevant papers with a distinct lack of enthusiasm. The Judge had no trouble in finding that no such lien existed. The principal point taken by the Respondent before the Judge was that the Appellant had no right to bring proceedings for an order for delivery up. That was so, submitted Mrs Mahoney, because the Appellant had no immediate right to possession of the papers in question at any material time before proceedings were commenced. In summary, the Judge acceded to the submission that the Appellant had no right to bring the proceedings. It follows that this appeal is concerned with whether or not the Appellant had no right to immediate possession of the papers in question and, therefore, no right to maintain an action for wrongful interference with property, in this case the papers in question.
18.	In support of the conclusion reached by the Judge, Mrs Mahoney takes as her starting point and, indeed, her end point the proposition that since the Appellant had not obtained a grant of letters of administration at any time prior to the hearing on 8 June 2007 he had no right to bring an action for wrongful interference. She submits that the admitted fact that he was entitled to apply for a grant of letters of administration gave him no immediate right to possession of the property in question. She submits that no difficulty arises from that proposition since the Appellant could have applied for and obtained a grant of letters of administration whether or not he had the documents in question in his possession. Further even if it had proved difficult or impossible to obtain a full grant, if necessary submits Mrs Mahoney, the Appellant could have obtained a limited grant such as a grant ad litem or a grant ad colligenda bona and that in the event that such grants had been made to him he could have demanded and if necessary sued for delivery up of the relevant documents.
19.	She supports her principal submission by reference to the leading textbook Williams, Mortimer & Sunnucks on Executors, Administrators and Probate (19th ed. 2008)  Paragraph 8 -10 reads:- 
“As set out above, an executor may perform most of the acts appertaining to his office, before probate. However, for an administrator, the general rule is that a party entitled to administration can do nothing as administrator before letters of administration are granted to him. This is because he derives his authority entirely from the appointment of the court. Before his appointment, the property vests in the Public Trustee. ………..
A person has no right to commence proceedings as an administrator before letters of administration have issued for until such time, he has no right of action. Under existing case law, the subsequent issue of letters of administration will not assist, for the grant does not for this purpose relate back ………… On the basis of these authorities, it has been held that proceedings brought by a person supposedly as administrator, but before obtaining a grant, are in nullity and cannot be validated by a later grant of administration.”
20.	The logic of the position taken by Mrs Mahoney is that pending the grant of letters of administration no one, other than the Public Trustee or someone specifically authorised by him, has an immediate right to possession of documents of a class such as is under consideration in this case unless that right is derived from actual possession.
21.	It is as well to remember that the issue of whether or not the Appellant has an immediate right to possession of the property in question falls to be considered in the context of whether or not he has standing to sue for wrongful interference with that property. In this context it is generally accepted that a person can maintain such an action if, and only if, he had at the time of the alleged wrongful interference either actual possession of the property in question or the immediate right to possess the property concerned. It is common ground that it is unnecessary for a claimant in such proceedings to prove ownership of the property. Indeed, in circumstances which I do not need to consider even the owner may not be entitled to sue.
22.	In the instant case the Appellant could not claim ownership of the property at any time before 8 June 2007. Equally he did not assert that he had ever been possession of the property. His submission is, however, that at the time he demanded the delivery up of the documentation (by the letter of 12 April 2007) he had an immediate right to possession of the same. Mr Miller, Counsel for the Appellant, submits that he had such a right essentially by virtue of his status as the father of the minor who was the sole beneficiary of the deceased’s estate and the person entitled in order of priority to apply for a grant of letters of administration. It makes practical sense, submits Mr Miller, that such a person should have an immediate right to possess all documents which are relevant to the preparation and submission of the application for a grant of letters of administration. He submits that there is no policy or other countervailing practical reason why a person in the position of the Appellant should be frustrated from seeking possession of relevant documentation or recovering such documentation by legal action if necessary.
23.	He sought to test his submissions by reference to a number of examples the most cogent of which was as follows. 
24.	Following the death of a person intestate (A) the person who is his sole beneficiary (B) and who is also the person, in order of priority, who is entitled to a grant of letters of administration enters A’s home and removes such documents as exist which will facilitate the preparation of an application for letters of administration. In those circumstances, submits Mr Miller, it would be wholly inappropriate to conclude other than that B was entitled to do what he did. Mr Miller then postulates whether or not B would be able to maintain an action for wrongful interference with the documentation if, upon his entry into A’s home he discovers that the documents are in the possession of a trespasser who refuses to hand them over when requested so to do. In such circumstances, submits Mr Miller, it is obvious that B should be able to bring a claim for wrongful interference.
25.	Mrs Mahoney’s response to these examples can be summarised in this way. Although it may be that B had no right to take possession of the documentation prior to the grant of the letters of administration once he took possession he would be entitled to retain possession of the documentation against anyone except the legal owner, namely the Public Trustee. That would be so because no one, other than the Public Trustee (or persons authorised by him) would have a better right to possession of the documentation. In nearly all cases, in practice, once the documentation was in the possession of B he would retain possession and be able to resist unjustified claims by persons with no or lesser interests in the property.
26.	Mrs Mahoney accepts that it might appear, at first blush, somewhat strange that B can maintain no action for delivery up of the documentation against the trespasser but she submits that difficulty is soon cured, in practice, if B seeks and obtains a limited grant of letters of administration such as a grant ad litem.
27.	There is no clear authority either in the cases or in leading text books which unequivocally supports Mr. Miller’s submissions. In terms of statements of principle it seems to me that the high water mark of the Appellant’s case is best expressed by reference to passages from the leading textbook Winfield and Jolowicz on Tort (17th Ed. 2006). Under the heading “Title of Claimant” the learned author says this:- 
“What kind of rights to the goods must the Claimant have in order that interference with it may amount to conversion? The answer is that he can maintain the action if at the time of the Defendant’s act he had (1) ownership and possession of the goods, or (2) possession of them or (3) an immediate right to possession, but without either ownership or actual possession. This seems to be the law, but it can be elicited only from some confusion of terminology in the reports. Thus it is said in several cases that the Claimant must have ‘a right to property in the thing and a right of possession’ and that unless both the rights concur the action will not lie If ‘right of property’ means ‘ownership’ this might lead one to infer than no one can sue for conversion except an owner in possession at the date of the alleged conversion. But that is not so, for a bailee has only possession and not ownership (which remains in the bailor) and yet the bailee can sue a third party for conversion. And, as we shall see, one who has mere possession at the date of the conversion can generally sue, and so can one who has no more than a right to possess.”
The learned author then provides a number of examples of cases where the Claimant has or has not been held to have an immediate right to possess the property in question. In amongst the examples this sentence appears:-
“These examples are tolerably plain, but it must depend to a large of extent on the facts of each case whether the law will attribute to a person the immediate right to possess.”
It is to be observed that while each of the examples quoted by the learned author either for the existence of the right to possess or its non-existence is supported by authority, the bald sentence quoted immediately above is not so supported.
28.	It is also the case, however, that the stance adopted by Mrs Mahoney is unsupported by clear authority. The passages quoted above from Williams, Mortimer and Sunnucks do not, in my judgment, address the issue of whether or not a person who has yet to become an administrator but who is entitled under the Rules to a grant can take possession of property, formerly owned by a deceased person, but owned following the death and until the grant of letters of administration by the Public Trustee. The passages rather address the issue of whether the person entitled to a grant can do anything in the capacity of an administrator before the grant is made.
29.	In his Judgment (paragraph 44) His Honour Judge Riddell quotes a passage from Clerk & Lindsell on Torts which appears to support the view that a person in the position of the Appellant has no immediate right to possession of property formerly belonging to a deceased. The passage quoted by the Learned Judge is as follows:- 
“Secondly, the principle of relation back gives, in certain circumstances, an action for a wrong committed prior to the time when the Claimant was entitled to possession. In particular a personal representative may sue for dealings with respect to goods between death and grant of probate or letters of administration, i.e. prior to the time when the Claimant was entitled to possession. The Claimant is not entitled to possession until the grant of the probate.”
30.	The current edition of Clerk & Lindsell on Torts (19th Edition) is not in the same terms as the passage quoted by the Judge. Paragraph 17-43 of the current edition reads:- 
“Secondly, the principle of relation back gives, in certain circumstances, an action for a wrong committed prior to the time when the Claimant was entitled to possession. In particular a personal representative may sue for dealings with respect to goods between death and grant of probate or letters of administration, and a trustee in bankruptcy for dealings between the commencement of the bankruptcy and his appointment.”
31.	The reference in both passages to the principle of relation back is, of course, a reference to the principle that in certain circumstances a grant of letters of administration has been held to “relate back” to the death of an intestate so as to give validity to the acts of the administrator before the letters were obtained. The important point, however, is that both in the form quoted by the Judge (which I assume came from an earlier edition of the textbook) or in the form in the current edition the learned authors of Clerk & Lindsell appear to proceed on the basis that before the grant of letters of administration (absent the prospect of any relation back) a Claimant who becomes an administrator is not entitled to possession of the deceased’s property. However, they appear to relate this view to the position both of an executor and an administrator. Yet, it is clear that an executor derives his authority from the will and I do not understand Mrs. Mahoney to suggest that if the Appellant had been an Executor he would not have an immediate right to possession of the property. Without more, therefore, I am not prepared to treat the statement in Clerk & Lindsell as necessarily accurate on this point.
32.	In paragraph 3-002 of Sherrin and Bonehill:Law and Practice of Interstate Succession (3rd Edition) the learned authors write: - 
“The powers of an administrator to act before grant are exceptional and limited in effect to essential actions to preserve and protect the deceased’s estate.” 
No authority is provided for that proposition but, as it seems to me, it would be an extraordinary state of affairs if that was not so. If the trespasser in the example set out paragraph 24 above was not merely refusing to release the property to B but was in the process of destroying the deceased’s property it would appear extremely strange if nothing could be done, immediately, to prevent it. Mrs Mahoney accepts that B would be entitled to take effective practical action to prevent the destruction of property but yet also submits that he would not be a competent Claimant should he move, immediately, for injunctive relief or an order for delivery up.
33.	It appears to me that Mrs Mahoney is forced to adopt this stance since, otherwise, she would be forced to accept that there are some circumstances in which the person who has not been granted letters of administration (but who is entitled to a grant) can not only take possession of the property of the deceased but also sue to prevent its destruction or disposal.
34.	I do not accept that the law confers the right to take immediate possession of property upon an individual but, nonetheless, says that such a right cannot be enforced by legal action in the courts of England and Wales. I can think of no principle or practical reason why that should be so and in the absence of clear authority I would not be prepared to accept that the law is such.
35.	It does not seem to me that the decided cases in the Bundle of authorities touch upon this particular point. Bowler and John Mowlam & Co [1954] 1 WLR 1145 is authority for the proposition that if a Claimant brings an action in a representative capacity as administrator then that action is a nullity if he was not at the date the action was commenced an administrator with a proper grant. It is not authority for the proposition that a person who is entitled to a grant of letters of administration but who has not obtained such a grant cannot maintain an action for wrongful interference with property if, as a matter of law, he is entitled to immediate possession of the property in question. Similarly, in my judgment, Mills v Anderson [1984] 1 QB 704 casts no light on the particular issue which arises in this case.
36.	On the basis of the passage in Sherrin and Bonehill it is clear, in my judgment, that a person who is entitled to the grant of letters of administration has an immediate right to possession of personal property formerly owned by a deceased if it is necessary that he takes possession to safeguard the estate. As I have found, such a person also has the right to take legal action to enforce that right.
37.	In the instant case it cannot be said that Appellant needed the documentation so as to apply for a grant of letters of administration. In his statement date 31 May 2007 Mr Casson explains how the Appellant’s Solicitors (no doubt at some expense) could have obtained copies of all the documents held by him. No evidence was adduced to contradict what Mr Casson says in his witness statement and, indeed, the submissions before me proceeded on the basis that his account was factually accurate. As is obvious the Appellant cannot argue that he needed to take possession of the documentation so as to safeguard the estate.
38.	In the absence of a clear statement of principle in an authority binding upon me I find it impossible to hold that a person who has not been granted letters of administration but who has the right to apply as a matter of priority acquires an immediate right to possession of property formerly owned by the deceased in circumstances in which there is no immediate need for him or her to be in possession of such property. In reality, such a finding would go well beyond the circumstances in which non-owners have traditionally been considered to have an immediate right to possession. Further, it may lead to a blurring of the understanding of the discrete differences between the rights of executors and administrators as from the time of death but before a grant. While in very unusual cases on the facts this conclusion may appear to work a possible injustice, in the vast majority of cases the person entitled to a grant will in fact obtain possession of the property of the deceased. Once that has occurred, he can rely upon his possession of the same to ward off unmeritorious claims against it.
39.	 As it happens on the particular facts of the case I reach my conclusion with some regret since, obviously, the point taken before me and upon which the Respondent succeeded below was very much an afterthought. It seems clear to me that had the Respondent not asserted a lien (wrongly) it would have delivered the documentation held by it to the Appellant’s solicitor, probably, as I have said, believing that the Appellant had the right to possession of it. Nonetheless, as it seems to me, I cannot allow the comparatively unattractive position of the Respondent in this litigation to influence, what, in the end, is a point of principle.
40.	I should also deal, shortly, with the submission of Mr Miller to the effect that the facts in this case are such that the Appellant is to be considered as having acquired an immediate right to possession. This submission is encapsulated in paragraph 9 of Mr Miller’s supplementary outline submissions in which he says: - 
“Even if the Court does not accept the proposition …….. that a person entitled to apply for a grant of letters of administration has a right to immediate possession of documents for the purpose of making such an application in the particular circumstances of this case:   
a the Appellant asserted a right to immediate possession of estate papers;
b the Respondent believed that, but for its alleged lien, the Appellant had such a right; so that
c both parties were agreed that the Appellant had a right to immediate possession, although the parties disagreed as to whether this was or was not subject to an alleged lien.”
41.	In my judgment there are two short answers to Mr Miller’s submission. Firstly, this basis of claim is not that which was pleaded in the Claim Form or, so far as I can see, the Application Notice. Further, as I understand it, this point was not argued orally in the hearing below. Certainly the Judge does not refer to such a submission. Secondly, however, it is difficult to see how the misunderstanding of the parties as to the true legal position can confer upon the Appellant a right which the law says he does not have. I do not suggest that circumstances can never arise in which, for example, the law relating to estoppel might not be relied upon but I cannot possibly decide such a point in the context of this appeal and in the absence of very detailed arguments.
42.	It follows from the above that I agree with the conclusion of His Honour Judge Riddell that the Appellant had no right to bring a claim for delivery up at the time these proceedings were launched or when the learned Judge gave judgment.
43.	I should say, however, for the avoidance of any doubt that if the Judge was suggesting that the Appellant might have an immediate right to possession of the documents but yet have no standing to sue to enforce that right I disagree. There are passages of the Judgment which hint that the Judge may have so thought. I refer, in particular, to paragraph 45. I also refer to that part of the Judgment which considers whether or not the Appellant’s solicitor was entitled, in effect, to write a letter demanding delivery up of the documentation. Upon one reading of that passage of his Judgment the Judge might be thought to be accepting that a right to possession existed albeit it was an unenforceable right.
44.	My conclusion is founded squarely on the basis that at the material time the Appellant did not have an immediate right to possession of the documentation in question. Had I concluded that he did enjoy such a right, to repeat, I would also have concluded that he was entitled to enforce that right by legal action.
45.	For the reasons I have given this appeal must be dismissed.