Appendix 3
S.I. 2020/1059
Non-Contentious Probate (Amendment) Rules 2020
1.On 14 October 2020, the Committee requested that the Ministry of Justice submit a memorandum relating to the above instrument asking the Ministry of Justice, to explain why rule 2 (inserted rule 3A) does not set out what is meant by dealing with non-contentious and common form probate business “justly and expeditiously”, having regard to similar provisions in, inter alia, the Criminal Procedure Rules 2020 (S.I. 2020/759, rule 1.1(2)), the Court of Protection Rules 2017 (S.I. 2017/1035, rule 1.1(3)), the Civil Procedure Rules 1998 (S.I. 1998/3132, rule 1.1(2)) and the Welsh Language Tribunal Rules 2015 (S.I. 2015/1028, rule 3(2)), and having regard to the paragraphs relating to S.I. 2019/1264 in the Committee’s First Report of Session 2019–21.
2.The Department is grateful for the Committee’s consideration of this instrument and sets out below its response to the matters raised.
3.The non-contentious probate rules are made under section 127 of the Senior Courts Act 1981 and Part 1 of Schedule 1 to the Constitutional Reform Act 2005 by the Lord Chief Justice (LCJ) or by their nominated judicial office holder, in this case the President of the Family Division (the PFD), and contained in a statutory instrument.
4.Following that statutory framework, rule 2 of this instrument, inserting rule 3A into the Non-Contentious Probate Rules 1987 (S.I. 1987/2024) (the 1987 Rules), was formulated by a working group set up by the PFD in 2013.
5.That working group considered the issue of the discretion that was required to ensure justice to all parties who sought disposal of a matter under the 1987 Rules and the appropriate formulation of the corresponding rule required. That formulation was considered both in the light of the matters that commonly arise under the 1987 Rules and of the experience of the office holders who apply those Rules.
6.During the drafting of the statutory instrument in question the issue was further revisited by the Ministry of Justice, with input from those experienced in and/or tasked with the application of the 1987 Rules. The draft SI was also approved by the acting PFD.
7.It was the aim of Ministry of Justice to provide a rule that properly reflected the nature of the work which is largely paper based and, as the name would indicate, non-contentious. The non-contentious nature of the business is of great significance to the lack of need for an expansively formulated overriding objective clause, such as is contained in the Civil Procedure Rules 1998 (the CPR) identified by the Committee.
8.As the Committee will no doubt be aware, the CPR deal with matters which are of a dramatically different nature in that they are, or are very likely to become, highly contentious and subject to great degrees of litigation and for which a fuller clause is needed.
9.That contrast can be further clearly seen from the fact that matters that commence as non-contentious probate business under the 1987 Rules but become contentious are transferred to be dealt with by the Chancery Division of the High Court applying the CPR, for example Part 57.
10.It is also of note that this distinction is applicable to each of the statutory instruments very helpfully highlighted by the Committee.
11.For these reasons the Ministry of Justice and the acting PFD felt that the overriding objective as formulated in the statutory instrument in question was both sufficient for and proportionate to the matters to be dealt with under the 1987 Rules.
Ministry of Justice
20 October 2020
Published: 6 November 2020