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England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2005] EWCA Civ 1479

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Neutral Citation Number: [2005] EWCA Civ 1479

(sitting as a deputy judge of the High Court))

Royal Courts of Justice
London, WC2
14th November 2005

B e f o r e :



(1) NATIONAL WESTMINSTER BANK PLC First Defendant/Respondent
(3) ROSALIE JANE PRIOR Second and Third Defendants


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The Applicant appeared on his own behalf
MR TIMOTHY EVANS (instructed by Messrs Osbourne Clarke, Bristol BS1 6EG) appeared on behalf of the Respondent



Crown Copyright ©

  1. LORD JUSTICE JONATHAN PARKER: This is an application by Mr Timothy Upton, the claimant in the action, to reinstate an application for permission to appeal out of time against an order made by His Honour Judge Behrens, in the Chancery Division, Leeds District Registry, on 29 July 2004. By his order, the judge declared that Mr Upton is not entitled to any interest under the trusts of the last Will and Codicil of his late grandfather Sir Thomas Upton who died on 9 January 1937. I directed that the application be listed on notice to National Westminster Bank plc, the trustee of those trusts, which is the first defendant in the action.
  2. The Bank appears today by Mr Evans. Mr Upton appears in person, as he did before the judge.
  3. The background facts are very briefly as follows.
  4. By his Will dated 21 January 1930 Sir Thomas Upton (I will call him "the Testator") settled his residuary estate on trust for his four children, Thomas (Mr Upton's father), John, Richard and Shirley, their children and remoter issue. The Will provided that Shirley's share was to be two-fifths of the residuary estate, and those of the three sons one-fifth each, but that was varied by a later Codicil so that Thomas took a two-fifths share, and the other children one-fifth each. The share of each child was settled on trust to pay the income of the share to such child during his or her life, and thereafter for such of the children and remoter issue of such child as he or she should appoint, and in default of appointment to the children of such child living at the Testator's death, and if more than one in equal shares. Clause 16 of the Will contained a provision that if the trusts of any share should fail, the share should accrue to the shares of the other children.
  5. The Testator died, as I have said, on 9 January 1937, leaving his four children surviving him. Probate of the Will and Codicil was granted on 28 October 1937.
  6. John died in 1940, without issue, and his share accordingly accrued to the other three shares. Shirley died in 1997, also without issue, and her share accordingly accrued to the two remaining shares, viz. those of Thomas and Richard. The result of those accruers was that Thomas' share was increased to three-fifths, and Richard's share to two-fifths.
  7. Richard married in 1942 and there are two children of that marriage, Michael and Nicholas. Thomas was married three times, but there were no children of those marriages. In 1946 Richard's wife Leslie left him and went to live with Thomas. They never married. In 1949 Mr Upton was born of that union. In 1953 Leslie died, and in 1955 Thomas adopted Mr Upton.
  8. Thomas died in 2000, leaving his residuary estate to Mr Upton.
  9. In the action, Mr Upton seeks a declaration that he is entitled to his father's three-fifths share of the trust fund, on the footing that as an illegitimate child of Thomas, alternatively as an adopted child of Thomas, he qualifies as a beneficiary under the terms of the Testator's Will.
  10. By his judgment, the judge rejected those contentions. As to legitimacy, he held (relying on a decision of Buckley J in Re Brinkley [1967] 3 All ER 807) that as a matter of construction of the Testator's Will his reference to "child" did not include an illegitimate child, and that at the material time there was no statutory provision in force which could assist Mr Upton in that respect. As to Mr Upton's status as an adopted child, the judge reviewed the legislation relating to adoption from the Adoption Act 1926 onwards but pointed out that provisions in the Adoption Acts from 1950 onwards to the effect that in the context of a disposition of property the word "child" includes an adopted child unless the contrary intention appears did not apply to a Will executed prior to their coming into force. In the instant case, of course, the Will was executed, and the Testator died, many years before the 1950 Act was enacted.
  11. As the judge pointed out, the relevant statutory provision in force at the material time was section 5(2) of the 1926 Act, which provided, in summary, that the words "child" or "children" when used in any disposition should not include an adopted child unless the contrary intention appeared.
  12. The judge also rejected a number of contentions advanced by Mr Upton based on alleged breaches of his human rights.
  13. The judge refused permission to appeal, but he extended the period for lodging an appellant's notice to one month.
  14. On 26 January 2005 Mr Upton issued an appellant's notice seeking permission to appeal from this court (already substantially out of time). It was accompanied by a bundle of documents, which was found by the Civil Appeals Office to be defective in a number of respects. That was pointed out to Mr Upton, and he was given until 17 February 2005 to remedy those defects. In a letter to the Civil Appeals Office dated 16 February 2005 Mr Upton explained that he was unable to comply with deadline since he had gone to Australia. In that letter he also indicated that he did not wish to proceed with the application for permission. He was then informed by the Civil Appeals Office that if the defects were not remedied by 18 March 2005 his application would be dismissed with costs unless in the meantime he provided sufficient reasons why that should not be done. He was also sent the necessary forms with which to request dismissal of his application.
  15. In the event, nothing more was heard from Mr Upton at that stage, and on 23 March 2005 Deputy Master Di Mambro ordered that the application be dismissed with costs.
  16. However, by an application notice dated 9 August 2005 (that is to say, over a year after the judge's order was made) Mr Upton seeks to reinstate his earlier application on the ground that he wishes to negotiate with the Bank in the hope of avoiding further litigation, and that when he left for Australia he asked that his file (and I quote from the notice) "not be activated until my return". It is that application which is before us this morning.
  17. The effect of reinstatement would inevitably be to grant Mr Upton an extension of time of over a year. I am afraid I can see no grounds for granting such a substantial extension. Time limits prescribed by the Civil Procedure Rules are there to be complied with unless there are good reasons for failing to do so. In the instant case, in my judgment, no such reasons have been shown.
  18. In the course of his submissions, Mr Upton sought to rely on the fact that section 7(5) of the Human Rights Act 1998 provides for a period of 12 months in which to bring proceedings against a public authority on the ground that it has acted in a way which is made unlawful by section 6 of that Act. Section 6 provides that (with certain exceptions) it is unlawful for a public authority (which includes a court) to act in a way which is incompatible with a Convention right. The present action, however, is not a proceeding brought under section 6 or 7 of the Human Rights Act, and the 12-month period has no application to it.
  19. Mr Upton in the course of his submissions also pointed out that he had no legal representation before the judge. He subsequently sought legal advice, but he complains that the lawyers from whom he sought such advice have not assisted him as they should have done. He has asserted that he is, as he puts it up, up against the establishment. He submits that it is not his fault that he is so substantially out of time. On the contrary, he says, it is the fault of the lawyers whom he consulted and of the way in which the justice system operates.
  20. I can see no substance whatever in any of those submissions. Nor, as I have already indicated, can I see any good reason for reinstating Mr Upton's application. I would accordingly refuse to reinstate the earlier application which was struck out by Master Di Mambro on the ground that no good reason has been shown for the very substantial delay which has occurred.
  21. In any event, I should say that I cannot see that the proposed appeal, even if it were allowed to proceed, has any real prospect of success. Indeed, the judge's conclusions as to the effect of English statute law are in my judgment plainly right. Nor, for that matter, can I see any substance in the applicant's arguments in relation to his human rights. The judge construed the Testator's Will in accordance with English law, as he was required to do.
  22. However, as I have indicated, my ground for dismissing this application is the failure of Mr Upton to provide any good reason for the substantial delay which has occurred. I would accordingly dismiss the application.
  23. LORD JUSTICE LLOYD: I agree.
  24. ORDER: Application for permission to appeal refused with costs.
    (Order not part of approved judgment)

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