Red light for stale claims

Family lawyers will be urgently reviewing limitation deadlines after the High Court rejected a claim filed nearly 17 months out of date.

In Cowan v Foreman [2019] EWHC 349 (Fam), Mr Justice Mostyn held that a widow could not bring a claim for financial provision from her husband’s £16m estate because she was out of time.

‘In my judgment, absent highly exceptional factors, in the modern era of civil ligation the limit of excusable delay should be measured in weeks, or, at most, a few months,’ Mostyn J said, in his judgment.

The widow wished to challenge the terms of the late husband’s will, which placed the bulk of his assets into two trusts. She argued that she had been unaware of the six-month time limit in the Inheritance (Provision for Family and Dependants) Act 1975 and that both parties had agreed to a time extension, and asked the judge to exercise his discretion.

Mostyn J declined, however, stating in his judgment: ‘Litigation is intrinsically stressful and extremely expensive.

‘The time limit must be there to protect beneficiaries from being vexed by a stale claim, whether or not the estate has been distributed. Similarly, the time limit must be there to spare the court from being burdened with stale claims which should have been made much earlier.’

Richard Kershaw, family law partner at Hunters Solicitors, said Mostyn J’s comments will ‘cause concern and a lot of urgent reviewing of files by lawyers over the next few days as they consider approaching limitation deadlines, and is likely to see a sharp uptick in claims being issued.

‘The judge is well known for his robust comments and shaping of the law. He has made it clear that agreements between lawyers to, effectively, waive the six-month deadline for starting such claims, must stop, saying “I suggest that it is a practice that should come to an immediate end. It is not for the parties to give away time that belongs to the court… the claim should be issued in time and then the court invited to stay the proceedings while the negotiations are pursued”.’