England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE CCRTF 97/1557

(HIS HONOUR JUDGE PERRETT QC )

Royal Courts of Justice

Strand

London WC2

Thursday 19th November 1998

B e f o r e:

LORD JUSTICE SIMON BROWN

LORD JUSTICE MUMMERY

SIR CHRISTOPHER SLADE

- - - - - -

ROBERT JAMES WALKER

Plaintiff/Appellant

- v -

GEO H MEDLICOTT & SON (A FIRM)

Defendant/Respondent

- - - - - -

TRANSCRIPT OF HANDED DOWN JUDGMENT

- - - - - -

MISS J WICKS (Instructed by Messrs Edge & Ellison of Rutland House, 148 Edmund Street, Birmingham B3 2JR) appeared on behalf of the Appellant

MRS T ROSEN PEACOCKE (Instructed by Pinsent Curtis of 3 Colmore Circus, Birmingham B4 6BH) appeared on behalf of the Respondent

- - - - - -

J U D G M E N T

(As approved by the Court )

- - - - - -

©Crown Copyright

Thursday 19th November 1998

JUDGMENT

SIR CHRISTOPHER SLADE: Mr Robert James Walker (“Mr Walker”) appeals from an order made by His Honour Judge Perrett QC in the Birmingham County Court on 24th October 1997, whereby he gave judgment for the defendant firm of solicitors Geo H Medlicott & Son (“the defendants”).

Mr Walker is a nephew of Mrs Marion Ruth Collins who died on 27th May 1995. Some ten years earlier, in April 1986, Mrs Collins (“the testatrix”) had instructed Mr Peter James Medlicott of the defendants, who had been in practice as a solicitor since 1968, to draft a will for her. He did so and she executed the will on 9th April 1986. In the action Mr Walker claimed that, contrary to the testatrix’s instructions, the defendants, in drafting the will, had negligently failed to include in it a specific devise in favour of Mr Walker of the testatrix’s house at 11 Norton Street, Knighton, Powys (“the house”).

The action was brought in reliance on the principles established by the majority decision of the House of Lords in White v Jones [1995] 2 AC 207. In that case the negligent delay of a firm of solicitors in carrying out the instructions of a testator for a new will led to the death of the testator before the will had been prepared and executed. The plaintiffs, who would have benefited under the new will, brought a claim against the solicitors in negligence. Their Lordships had to consider for the first time the correctness or otherwise of the decision in Ross v Caunters [1980] Ch 297, in which case Sir Robert Megarry V-C. had upheld a claim in negligence brought against solicitors by a disappointed beneficiary under a will which, owing to the solicitors’ negligence had not been properly attested. The principal issue falling for decision by the House of Lords in White v Jones , as described by Lord Goff of Chieveley (at p 254F-G), was “whether in the circumstances of cases such as Ross v Caunters and the present case the testator’s solicitors are liable to the disappointed beneficiary”. The majority approved the decision in Ross v Caunters and held that they were liable. Lord Goff, who was one of the majority, recognised [at p 256-257) the substantial conceptual difficulties involved in reaching such a conclusion, most particularly because of the general, well-established rule that a solicitor acting on behalf of a client owes a duty of care only to his client. However, a primary consideration which influenced him in holding that a duty of care should be owed by the testator’s solicitor to a disappointed beneficiary was the following (see at p 259G-260A):

“In the forefront stands the extraordinary fact that, if such a duty is not recognised, the only persons who might have a valid claim (i.e. the testator and his estate) have suffered no loss, and the only person who has suffered a loss (i.e. the disappointed beneficiary) has no claim: see Ross v Caunters [1980] Ch 297, 303A, per Sir Robert Megarry V-C. It can therefore be said that, if the solicitor owes no duty to the intended beneficiaries, there is a lacuna in the law which needs to be filled. This I regard as being a point of cardinal importance in the present case.”

The same point was made by Lord Browne-Wilkinson [at p 276B-C]:

“To my mind it would be unacceptable if, because of some technical rules of law, the wishes and expectations of testators and beneficiaries generally could be defeated by the negligent actions of solicitors without there being any redress. It is only just that the intended beneficiary should be able to recover the benefits which he would otherwise have received.”

Lord Nolan, the third member of the majority made the same point. He concluded (at p 293C-D) that “simple justice” required that the plaintiffs should succeed, saying:

“... the respondents have suffered damage because of the appellants’ breach of their professional duty, and they are therefore entitled to the remedy - the only remedy - which the law can offer ....”

Much more recently, this Court in Carr-Glynn v Frearsons [1998] 4 AER 225 (a decision not cited to us) had to consider a claim in negligence brought against a solicitor-draughtsman of a will, who had failed to advise the testator to serve a notice of severance of a joint tenancy of a property, with the result that the property did not fall into the testator’s estate and a gift to the plaintiff of the testator’s interest in the property contained in the will could not take effect. The question for the Court, as formulated at p 231 f-g by Chadwick LJ, who gave the leading judgment, was this:

"The question, therefore, is whether the remedy which the House of Lords was prepared to extend to a disappointed beneficiary in White v Jones is confined to those cases, of which White v Jones was an example, in which the estate itself has no remedy - so that, absent a remedy at the suit of the beneficiary, there is no remedy at all; or is to be further extended to cases in which the estate does have a remedy but where the estate’s remedy will be of no advantage to the disappointed beneficiary."

[I pause to comment that the estate’s remedy would have been of no advantage to the beneficiary in that case, because any damages recovered in the action would have fallen into residue, rather than passing under the specific gift to the plaintiff contained in the will.]

The Court answered this question by holding that the disappointed beneficiary in such circumstances did have a remedy against the negligent solicitor-draughtsman. That case, as Thorpe LJ recognised in his judgment (at p 237b), involved “a permissible incremental extension of the holding in White v Jones” and there is at least one passage in the judgment of Chadwick LJ (see at p 235 b-c) which suggests that in general a solicitor-draughtsman of a will owes a duty of care to a specific legatee to ensure that effect is given to the testator’s testamentary intentions.

The facts of the present case, however, differ from those of Ross v Caunters , White v Jones and Carr-Glynn v Frearsons . The alleged negligence (if any) of the defendants consists not of the failure to see that a will is properly attested, or of the failure to draw it up at all, or of the failure to advise the testator to take some action to ensure that the relevant asset will fall into his estate, but of the failure to draft the will in accordance with the testatrix’s instructions. Counsel have told us that neither of them is aware of any decided case in which the Court has had to consider a claim in negligence brought against solicitors arising out of the allegedly bad drafting of a will which has actually been executed.

A claim against solicitors brought by a disappointed beneficiary who claims that the will was negligently drafted could be said to give rise to questions of principle that did not arise in Ross v Caunters , White v Jones or Carr-Glynn v Frearsons . In none of those cases would the disappointed beneficiary have had any remedy at all if he had none in negligence. On the other hand, in circumstances such as those of the present case, the claim in negligence is by no means the disappointed beneficiary’s only remedy, because of the existence of the remedy of rectification - a remedy not available or considered in any of the three earlier cases.

In the 19th century, in the absence of fraud, the rule was that where a will had been read over to a testator or its contents had been brought to his attention in any other way, and he had executed it, this should be treated as conclusive evidence that he approved, as well as knew, its contents. As the decision of Latey J in re Morris [1971] P.62 shows, these facts are no longer regarded by the Court as conclusive or as giving rise to a presumption of law. Nevertheless, for obvious reasons of public policy, the Court will still attach considerable importance to them in weighing the evidence as to knowledge and approval. Furthermore, up to 1983, the law was clear that even

“where there is absence of knowledge and approval, ... the Court has no power to rectify by adding [emphasis added] words to the instrument. This has been so clearly stated judicially and for so long that it is not open to question in this Court and can only be changed by legislation or possibly by a higher tribunal: “(see ibid at p 75B-C per Latey J).

The law as thus stated would have precluded any question of rectification in the present case by the insertion in the will of a devise of the house in favour of Mr Walker. However, it was changed by subsequent legislation. Section 20(1) of the Administration of Justice Act 1982, which came into operation on 1st January 1983, provided as follows:

“(1) If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence -

(a) of a clerical error; or

(b) of a failure to understand his instructions,

it may order that the will shall be rectified so as to carry out his intentions.”

For reasons which will be stated later in this judgment, I think that, if the claims of negligence made by Mr Walker in the present action are well-founded, he would also have had a good claim for rectification of the will. Furthermore I think that in most other cases where there has been a negligent error in drafting, the remedy of rectification is likely to be available.

In view of the importance attached by the majority of the House of Lords in White v Jones to the absence of any alternative remedy available to the plaintiff, I think that just possibly, even after Carr-Glynn v Frearsons , it might have been arguable that a solicitor-draughtsman of a will owes no duty of care to intended beneficiaries who, due to the failure of the solicitor to carry out his instructions in the drafting of the will, take no benefit under the will in its form as executed.

In the present case, however, no such argument has been submitted on behalf of the defendants. They have accepted from the start that they owed a duty of care to Mr Walker in drafting the will. In my judgment this concession was rightly made and I proceed on that footing. As the case has been argued,

the existence of the alternative remedy of rectification has been relevant for two reasons. First, it has given rise to a submission on behalf of the defendants, raised by a respondents’ notice, that even if a breach of duty has been established, Mr Walker should recover nothing, because he has failed to mitigate his damage by pursuing the remedy of rectification. Secondly, in my judgment, it reinforces the view that the onus of proof falling on a disappointed beneficiary, who brings a claim in negligence against the solicitor-draughtsman of an executed will, is an exacting one.

In the case of Re Segelman [1996] Ch 171 at p 184 Chadwick J (as he then was) observed:

“Although the standard of proof required in a claim for rectification made under section 20(1) of the 1982 Act is that the Court should be satisfied on the balance of probabilities, the probability that a will which a testator has executed in circumstances of some formality represents his intentions is usually of such weight that convincing evidence to the contrary is necessary.”

I agree and it has been common ground between counsel that the same standard of proof should be applied in the present case. I see no reason why a claimant who is asking the Court to find that a will does not properly record a testatrix’s intention, not in order to rectify the will but to recover an equivalent benefit in the form of damages from the solicitor who prepared the will, should be in any better position as regards onus of proof than if he sought to recover his alleged testamentary benefit direct from the testatrix’s estate.

I now turn to the facts of the case.

On 4th April 1986 the testatrix, who was then a lady in her early seventies, presented herself at the defendants’ office, without prior appointment, saying that she wanted to make a will. She was met by a Mrs Vera Lewis, who at the time was acting as a receptionist and took her in to see Mr Medlicott.

The testatrix brought with her a note in her own handwriting, which she intended to use as an aide-memoire for the purpose of giving the defendants’ instructions but cannot itself be regarded as comprehensive instructions for a will. The note read as follows:

“I want as my Executor Bobbie Walker [Mr Walker], The Flat, 108 High Street, Henley-in-Arden, Warwickshire.

To my nephew, Mark Abley, £2000.

House and contents to Bobbie Walker.

£600 to the Gould children.

£250 [but amended apparently in the testatrix’s handwriting to £150] to Mrs Sarah Passey.

A black H stone to be put if one not there already.

Buried with husband at Knighton. [It appears that these last five words were added in the hand of Mrs Lewis at the request of the testatrix, probably while she was waiting to see Mr Medlicott].

The remainder to go to my nephew in Gatley.

“ “ in Hereford

& my sister’s children in Leominster.

Gold chain to Mark’s wife.

Antique [a word again added in the hand of Mrs Lewis] clock, copper kettle c-sticks.”

The note ends there without stating the destination of the three last mentioned items.

At the time of execution of her will, the testatrix was a widow with no children. She had one sister who lived in Leominster. She had five living nephews and one niece namely:

(1) Geoffrey Evans who lived in Gatley

(2) Roy Dudley who lived in Hereford

(3) Tony Walker who lived in Leominster

(4) Glyn Walker who also lived in Leominster

(5) Madeline Curtis who lived in Bristol

(6) Mr Walker who lived in Henley-in-Arden.

There was also living a nephew of her late husband, Mark Abley, who had a wife named Anne.

It has been suggested on behalf of Mr Walker that because the testatrix’s sister, Doris Walker, herself lived in Leominster, the reference in the testatrix’s note to “my sister’s children in Leominster” may have been intended to include Madeline Curtis and Mr Walker, even though they did not live in Leominster. I do not think this is likely. Since the testatrix had only one sister, and she required no identification and was not going to benefit under the will, there would have been little point in recording her address in the note. The far more natural meaning to attach to the phrase last quoted is “the children of my sister who live in Leominster”, the reference to Leominster being intended to designate the place of residence of the intended beneficiaries, just as the previous references to Gatley and Hereford had done. I therefore think it right to approach this case on the basis that the testatrix’s note did not include Madeline Curtis and Mr Walker in the class of intended residuary beneficiaries.

During his interview with the testatrix and in her presence, Mr Medlicott made a handwritten attendance note of what he understood to be her instructions for her will. This was clearly done by reference to her own note, but after discussion with her. Both the testatrix’s own note and the attendance note (which recorded that the interview lasted 18 minutes) were retained by Mr Medlicott and were important evidence at the trial.

At least insofar as they are recorded in the attendance note, the instructions given by the testatrix to Mr Medlicott, after discussion at the interview, added to or differed from those contemplated by the testatrix’s own note in a number of respects. To mention some of these additions or differences:

(1) A residuary gift of “all personal chattels” in favour of Mr Walker was to be substituted for a gift of the contents of the house.

(2) The gift to the Gould children was to be contingent on their attaining 18.

(3) Mark Abley was named as the beneficiary who was to take “my antique marble clock copper kettle and candle-holder”.

(4) Madeline Curtis was to be added to the list of residuary beneficiaries.

(5) Mr Walker was also to be added to that list.

(6) (Most materially of all for present purposes) the attendance note contained no reference to any intended specific devise of the house in favour of Mr Walker.

The testatrix’s will, as subsequently drafted and executed by her, accorded in all substantial respects with Mr Medlicott’s attendance note and thus reflected all these six features. It is clear from that note that, albeit in the space of a fairly short interview, he must have taken detailed and particularised instructions with regard to at least most of the items covered by the testatrix’s own note. As regards the first five of the six features which I have mentioned, it is not suggested that he either misunderstood or failed to carry out her instructions. Mr Walker’s claim, however, is that Mr Medlicott, most regrettably, failed to carry out his instructions with regard to the sixth.

In the evening of 4th April 1986, three hours after the interview, while the matter would still have been fresh in his mind, Mr Medlicott dictated a fairly simple draft will and checked it. On checking it, he made a few minor amendments. He then arranged for an engrossment of it to be prepared and sent it to her on 8th April 1986 with a covering letter, in which he said:

“I shall be obliged if you will be good enough to read this through and perhaps you could call at my office when convenient to yourself, so that this can be signed by you in the presence of two witnesses. Should you have any queries please let me know.”

On 9th April 1986 the testatrix came to Mr Medlicott’s office. In the course of a very short interview (about four minutes) she confirmed that she was content with the will as drawn and executed it.

After the testatrix’s death Mr Walker, to his surprise and disappointment, learned that the house would fall to be dealt with merely as part of her residuary estate in which he would take a mere ¹/₆^th share.

His surprise and disappointment are well understandable. It seems clear that he was the testatrix’s favourite nephew. During his childhood he spent most of his school holidays with her, at his grandmother’s house in Knighton. That continued into his adult years when he was in the army. In 1953, when he was 21, the testatrix, then about 40, married Jim Collins. He was Mr Collins’ best man and thereafter continued regularly to travel from Leamington Spa, where he lived, to Knighton to visit the couple. He said that he visited them between six and ten times each year and that after Mr Collins’ death he started to do various jobs of repair and maintenance to the house and helped her with her shopping and generally. Indeed, he said, in her later years, he did 99% of the house’s maintenance and upkeep.

But Mr Walker’s hopes were by no means based solely on his relationship with the testatrix. His evidence was that on 9th April 1986 he himself had taken the testatrix to the defendants’ office and waited outside in the car while she signed her will. On coming out of the office, she had said to him:

“Well Bob, I’ve signed it. The house is now yours and I’ve left you with a share of the money so that you can do it up.”

The Judge apparently accepted this evidence. Furthermore, according to Mr Walker’s evidence, which in this respect was not challenged in cross-examination, the testatrix discussed her will with him on other occasions, telling him that he would have the house and money to do it up with.

Mr Walker in addition called evidence from no less than nine other members of the family, neighbours or friends as to conversations subsequent to April 1986 in which the testatrix had told them, either in terms or by necessary implication, that she had left the house to Mr Walker. I refer to the evidence of Jean Morgan, Beryl Gould, Rosali Scotford, Doris Walker, Desmond Bright, Anthony Walker, Daphne Walker, Hopkin Morgan and Roy Dudley. Furthermore, these same nine witnesses, with the addition of William Evans and Glyn Walker, and Mr Walker himself, gave evidence of conversations with the testatrix before she made her will in the course of which she had indicated to them her intention to leave the house to Mr Walker. I do not think it necessary for present purposes to particularise all this body of evidence beyond stating its general tenor. Its most salient points are helpfully summarised in the judgment and in the skeleton argument submitted by Miss Joanne Wicks for the plaintiff. Suffice it to say that, while a few of these many witnesses were successfully challenged in cross-examination on points of detail, the general tenor of their evidence as I have described it, was not refuted and much of it was not challenged.

The defendants called evidence from two witnesses, Geoffrey Evans and Ian Chillery, to the effect that the testatrix was a lady with a wry sense of humour and that, while on occasions she would tell them that she was leaving them this or that by her will, they knew she was joking. Another nephew, Roy Dudley, said it was somewhat of a family joke that the testatrix always dangled her will prospects before her relations so as to get their attention.

However, none of the evidence called on behalf of the defendants led the Judge to reject the evidence called on behalf of Mr Walker as to the testatrix’s testamentary intentions, (whether before or after the execution of her will). Though the Judge did not explicitly accept any of this evidence, he rejected none of it, (with the one exception of part of the evidence of Beryl Gould).

Mr Walker’s case as presented to the Judge (and later to this Court) was in effect that Mr Medlicott, in failing to incorporate in the will the gift of the “house and contents” in favour of Mr Walker, envisaged by the testatrix’s note, must have been negligent, it being inconceivable that her often repeated wishes and instructions with regard to the house, both before and after the making of her will, should have been departed from in the 18 minutes which it took Mr Medlicott to record her instructions.

The Judge considered that there were four inferences which could, at least in theory, be drawn from the evidence before him:

“First that Mrs Collins had never finally resolved to leave her house solely to Bobby Walker despite what she had said so often to so many persons. Secondly, that she simply forget, despite her handwritten note, to tell Mr Medlicott what she wanted to happen to her house. Thirdly, that with or without discussion at the solicitor’s office she consciously decided in her will to treat all her brother’s and sister’s children equally, she having no children of her own. Fourthly, that Mr Medlicott, having been told by Mrs Collins of her wishes regarding the house failed to act of his instructions.”

The Judge, in my opinion rightly, rejected the second of these inferences as being “most unlikely”. Most materially for present purposes, he also rejected the fourth, or at least decided that, on the balance of probabilities, it had not been proved. In doing so, he attached great weight to the evidence of Mr Medlicott.

Mr Medlicott told him that at the date of the interview he had had nearly 20 years experience in wills and probate matters. During the 7 months immediately before his signing his witness statement, he prepared over 40 wills and in the years since he drafted the testatrix’s will he had drafted about another 700. So not surprisingly he had no recollection of the making of this particular will. In giving his evidence he relied on his contemporaneous attendance note from his file and on what he regarded as his habitual practice when drawing up wills. From this he was able to say that the testatrix came to see him without a prior appointment but bringing with her written notes which he preserved with his attendance note. He explained to the Judge the usual routine which he adopted when clients produced notes. Where the notes were less than comprehensive, he would go through them to ascertain whether they expressed the uninfluenced wishes of the client, to clarify any ambiguity, to ensure completeness and to put them in the order in which he was to deal with them in the will and to ensure that the client fully understood what the effect of the note would be.

He referred to his attendance note, from which he said it was clear that he went through the testatrix’s note with her. It was his experience that clients often changed their instructions when they had discussed the matter with him. He stressed that, when taking instructions for a will, he would only note down the final instruction as to what was to go into the will, not the discussion itself nor what after discussion had been ruled out. This practice he said, positively avoided the risk of muddle.

In the light of his attendance note, he said in his witness statement, he could conclude categorically that the testatrix, having given the matter further thought, had decided that Mr Walker’s name should be added to the list of residuary beneficiaries. In the numbered paragraph 2 of his attendance note, which deals with bequests of chattels, there is a sub-clause (c) which reads “see below *”. At the end of the numbered paragraph 3 of the note, there is an asterisked sub-clause (c) which reads “All personal chattels (except as bequeathed) to nephew Robert Walker”. Mr Medlicott told the Judge that, in view of this asterisked sub-clause, he must have discussed the matter of chattels with the testatrix and, since the testatrix’s own note referred to “house and contents” together, he must likewise have discussed the destination of the house with her. He told the Judge (Day 2 p 19F) that he inferred that, when the testatrix was in his office, she must have had second thoughts about the house and so instructed him.

It was submitted that the recorded 18 minutes which it took for Mr Medlicott to take Mrs Collins’ instructions for her will may have been less than sufficient time for the task to have been accomplished carefully and accurately.

The Judge, however, rejected this submission, saying:

“Mr Medlicott was very used to dealing with these matters and I can see that further time that day was spent by Mr Medlicott checking the will against his notes and drafting it from his notes and he must at that time have retained the handwritten note that appears to have been Mrs Collins’ pre-consultation ideas as to what she wanted to be put in the will.”

His ultimate conclusions were as follows:

“I find it impossible to conclude that with a will, the final draft of which covers only one and a half sides of foolscap that the time taken (some 35 minutes of professional time in all) was so brief as to cause Mr Medlicott to neglect Mrs Collins’ instructions or even to misunderstand any positive instruction that Mrs Collins gave that she wanted to leave her house solely to Mr Walker. I, therefore, cannot conclude that Mr Medlicott, who admittedly owed a duty to Mr Walker, was in breach of that duty or that on a balance of probabilities the supposed failure of the will to record what was assumed to be Mrs Collins’ wishes with regard to the inheritance of her house was due to the negligence of Mr Medlicott as the testator’s solicitor. Accordingly, there must be judgment for the defendant.”

Though the Judge did not expressly say so, it thus appears that, primarily in reliance on the evidence of Mr Medlicott, he drew the third of the four possible inferences mentioned by him namely that, by the end of the discussion at the defendants’ office, the testatrix had decided to treat all her nephews and nieces equally.

In her clear and persuasive argument for Mr Walker, Miss Wicks submitted that on the evidence any such inference is quite unrealistic. If in the course of her conversations after the will was made, referred to above, the testatrix was telling her friends, relatives and neighbours, as well as Mr Walker himself, what she honestly believed to be the effect of her will, these conversations are wholly inconsistent with the inference that she had decided on 4th April 1986, contrary to her note, that the house should fall into residue and had instructed Mr Medlicott accordingly. Furthermore, it was submitted, whilst the conversations with the testatrix before the will was made could not be conclusive, because they do not exclude the possibility of a later change of mind, nevertheless, when taken with the evidence of conversations which took place after the will, they clearly show that the testatrix had had a settled and expressed intention for many years prior to the will - an intention which continued until her death - that Mr Walker should inherit the house; there is simply no rational basis for suggesting that the testatrix changed her mind.

I see considerable force in these submissions. Though Mrs Peacocke, who appeared for Mr Medlicott, invited us to give little weight to these conversations as amounting to not much more than “village or family gossip”, the large volume of evidence as to these conversations, when read as a whole, is in my view sufficiently clear that its general tenor cannot be rejected. It is of course theoretically possible that, both before and after making her will, the testatrix led everyone up the garden path, by deliberately misrepresenting either her testamentary intentions or the effect of her will when made, but I think this inherently unlikely.

If therefore the outcome of this action depended on the testatrix’s true testamentary intentions, I think that Mr Walker would have a strong case. But it does not. The issue in relation to liability is whether or not he has proved by convincing evidence on the balance of probabilities that the testatrix instructed Mr Medlicott to include in her will a gift of the house to Mr Walker and he failed to carry out those instructions in circumstances which constituted negligence. The Judge found that this has not been proved and I see no sufficient grounds upon which this Court would be entitled to reach a different finding.

Since Mr Medlicott is the only living person who was present at the interview, his evidence as to the interview, and the Judge’s assessment of him as a witness, must be of great importance. Since he had no recollection of the interview itself, Miss Wicks rightly pointed out that the relevant issue has to be determined on the basis of inferences drawn from the documents and other known and proved facts.

Mr Medlicott was the only witness whose evidence the Judge explicitly accepted, and this was on an important issue of fact relating to the course of the interview. The Judge said (transcript p 9F-G):

“So his lack of recollection is not surprising and his experience over the years, some 2,000 wills in all, leads me to conclude that he can with confidence say that this, Mrs Collins’ will, was a will the instructions for which and the drafting of which would have been carried out in accordance with his usual and habitual practice.”

The Judge then proceeded to summarise Mr Medlicott’s evidence as to the probable course of the interview, based on the documentation available to him and his usual practice, and, by implication, accepted this evidence. Miss Wicks reminded us of the well-known principle that in cases where there is no question of the credibility of witnesses but the sole question is inferences to be drawn from specific facts, an appellate court is in as good a position as the trial judge to evaluate the evidence and should draw its own inferences from the facts: (see for example Mersey Docks and Harbour Board v Proctor [1923] AC 253 at p 258-259 per Viscount Cave LC).

I do not for one moment dispute this principle but I do not accept that the credibility of Mr Medlicott is immaterial on the facts of this case. Once the Judge accepted, as he plainly did, Mr Medlicott as an honest witness on whose evidence as to facts, such as his usual practice, he could rely, he was in my judgment fully entitled to attach weight to the inferences drawn by Mr Medlicott as to the probable course of the interview, based on the available documentary evidence and his usual practice, even though he could not actually remember it. Furthermore, having seen and heard Mr Medlicott in the witness box, he was also entitled to take into account his impressions of his professional competence, intelligence and responsibility; and I have no doubt that he did so.

As I have already pointed out, the onus falls on Mr Walker in the present case to prove by convincing evidence that the testatrix instructed Mr Medlicott to include in her will a gift of the house to Mr Walker and that he failed to carry out those instructions in circumstances which constituted negligence. The Judge, in the penultimate sentence of his judgment, found that this had not been proved, and I see no sufficient grounds upon which this Court would be entitled to interfere with that finding.

If it be asked how that finding is reconcilable with the evidence as to the testatrix’s intentions and understanding, I think there is one possible simple answer. On the available evidence, I, for my part, on the balance of probabilities, would be disposed to draw the inference that there was a genuine misunderstanding between the testatrix and Mr Medlicott. As already stated, the discussion between them resulted in Mr Walker being added to the class of residuary beneficiaries. I would infer that in all probability there was also some discussion as to the destination of the house. In all the circumstances it is by no means inconceivable that, following the discussion, Mr Medlicott was left with the impression that the gift to Mr Walker of a share in residue was intended by the testatrix to take the place of a gift of the house itself, while the testatrix herself intended the gift of a share in residue to be additional to, rather than in substitution for, a gift of the house itself. Even if Mr Medlicott misunderstood the testatrix’s instructions, it by no means follows that such misunderstanding constituted negligence on his part.

There is no evidence as to what either party actually said at the interview. It may well be that, in the context of ascertaining the testatrix’s final wishes and intentions, there was some discussion as to the respective values of the house and the testatrix’s other assets. It may well be that the testatrix unwittingly gave Mr Medlicott the reasonable impression of intending one thing, while in truth intending another. In view of the paucity of the evidence as to the course of the crucial meeting and the Judge’s assessment of Mr Medlicott’s evidence and his calibre as a witness, there is not in my judgment available evidence of a sufficiently convincing nature to establish that any misunderstanding or failure to carry out instructions on the part of Mr Medlicott constituted negligence.

For all these reasons as I have already said, I see no sufficient grounds for disturbing the final conclusion of the Judge stated in the penultimate sentence of his judgment. On these grounds, if no other, I conclude that this appeal must fail.

There is, however, a further or alternative ground on which I reach the same conclusion. Mrs Peacocke for the defendants has submitted that, if Mr Walker’s case as presented at the trial was well-founded, he would have had a valid claim for rectification of the will under section 20(1) of the 1982 Act. I agree. If, as Mr Walker asserts, the will failed to carry out the testatrix’s intentions, this must, I think, have been in consequence either of a clerical error by Mr Medlicott in recording her instructions in his attendance note, leading to a corresponding error in the will as drafted, or of a failure on his part to understand her instructions. At least at first sight, it is difficult to understand why Mr Walker chose to begin by instituting proceedings for negligence rather than rectification.

In answer to this suggestion, Miss Wicks submitted that it was entirely reasonable for Mr Walker not to have brought proceedings for rectification. She referred us to the decision in Pilkington v Wood [1953] 1 Ch 770 on the facts of which Harman J held that the plaintiff was not obliged, even under an indemnity against his costs, to undertake “complex litigation”. We were told that not infrequently, in cases where the solicitor-draughtsman of a will admits a negligent error, proceedings for rectification will be brought with the protection of an indemnity offered by the solicitor in respect of the costs of the proceedings. In the present case, Miss Wicks pointed out, Mr Medlicott, so far from offering any indemnity, from the start denied that there had been any failure to carry out the testatrix’s wishes and instructions in the drafting of the will. An action for rectification, she submitted, would have been as hotly disputed as this present action.

This may be so, but, so far as I can see, the evidence on both sides would have been precisely the same. If Mr Walker had a valid claim in negligence, then a fortiori he would have had a good claim for rectification of the will. (I say “a fortiori” because, as I have already indicated, proof of the factors necessary to ground a claim for rectification would not ipso facto establish negligence on the part of Mr Medlicott).

Throughout this judgment, I have assumed in favour of Mr Walker, without deciding, that a beneficiary who, due to the negligent failure of the solicitor-draughtsmen of a will to carry out the testator’s instructions, takes no benefit under the will in its form as executed, has a good cause of action against the solicitor who drafted the will, even though he also has a good claim for rectification. Even on that assumption, however, I do not think that the law should encourage the bringing of actions against solicitor-draughtsmen in such circumstances.

First, successful actions for negligence in such circumstances will or may result in beneficiaries other than the successful plaintiff (for example the five other residuary beneficiaries in the present case) retaining adventitious benefits greater than those which they would have enjoyed if the will had been rectified so as to accord with the testator’s intentions (for example, in the present case, a share of residue depleted by the removal of the house). Justice would seem to demand that such other beneficiaries should share the financial burden of putting things right. Secondly, in my judgment, notwithstanding the decision in Pilkington v Wood (supra) this is a situation in which, as a general rule, the Courts can reasonably expect the plaintiff to mitigate his damage by bringing proceedings for rectification of the will, if available, and to exhaust that remedy before considering bringing proceedings for negligence against the solicitor (for example in relation to costs incurred in the rectification proceedings).

Accordingly, I would accept Mrs Peacocke’s submission that since Mr Walker has failed to mitigate his damages (if any) by first issuing proceedings for rectification of the will, he should on this ground, if no other, recover nothing in this action. On this further or alternative ground, I think his claim against the defendants must fail.

I cannot conclude this judgment without expressing some sympathy for Mr Walker in his disappointed expectations, having regard to the strength of the hearsay evidence as to the testatrix’s intentions. For the reasons stated, however, I would dismiss this appeal.

LORD JUSTICE MUMMERY: I agree and gratefully adopt Sir Christopher Slade's account of the facts and the proceedings.

I add short comments on only two aspects of the legal issues.

(1) Existence of Duty of Care .

It was held by the majority in the House of Lords in White -v- Jones [1995] 2 AC 207 that the assumption of responsibility by a solicitor to a client who has instructed him to draw up a will extends to an intended beneficiary

"...who (as the solicitor can reasonably foresee) may, as a result of a solicitor's negligence, be deprived of his intended legacy in circumstances in which neither the testator nor his estate will have a remedy against the solicitor" : per Lord Goff at page 268 C to E.

In that case the solicitor omitted to carry out the testator's instructions to prepare a new will revoking an earlier will. Under the earlier will the testator's two daughters were excluded from benefit, whereas under the proposed new will they were both intended to be legatees. The two daughters succeeded in their claim for damages against the solicitor, as he had negligently failed to act with proper expedition in the preparation of the new will before the testator died.

The majority in the House of Lords treated the absence of a remedy by the testator or his estate against the solicitor for his negligent omission as a reason for imposing on the solicitor a duty of care to the disappointed beneficiaries; but the reasoning of the majority does not treat the absence of a remedy in negligence against the solicitor at the instance of the testator or his estate as determinative of the duty of care issue. In Carr-Glynn v Frearsons(a firm) [1998] 4 All ER 225 (failure of a solicitor to ensure severance of joint tenancy of the testatrix in property disposed of by her will) the Court of Appeal held that the solicitor drafting the will owed a duty of care to an intended beneficiary, even though the estate of the testatrix might also have a remedy against the solicitor for loss resulting to the estate from the breach of duty:see p 235D-H per Chadwick LJ. In that case, however, the estate's remedy against the solicitor could not produce any direct or indirect benefit for the disappointed beneficiary.

The novel feature of the present case is that, if the remedy of rectification was available to Mr Walker, he would have inherited his aunt's house under the will, as rectified. He would not have suffered loss of his inheritance in consequence of the solicitor's failure to follow his instructions. Does that mean that the solicitor drafting the will did not owe a duty of care to Mr Walker as an intended beneficiary?

In my judgment, it was rightly accepted by counsel in this case that there was a duty of care. There is no reason in principle why the assumption of responsibility by a testator's solicitor to an intended beneficiary should not cover a case where another remedy, such as rectification of the will,is or may be available to the aggrieved beneficiary: for example, a case where the solicitor has in fact prepared a will, which is then duly executed by the testator, but the solicitor later accepts that he failed to carry out his instructions e.g. by omitting from the will a gift to a particular beneficiary. Lord Browne-Wilkinson formulated the duty of care in these terms in White -v- Jones (supra) at page 276 F:

"......By accepting instructions to draft a will, a solicitor does come into a special relationship with those intended to benefit under it in consequence of which the law imposes a duty to the intended beneficiary to act with due expedition and care in relation to the task on which he has entered."

Mr Walker was in fact a beneficiary under the will executed by the testatrix on 9 April 1986. He received a bequest of the contents of her house and also a sixth share of residue, which included that house. The question of fact for the trial judge was whether the testatrix instructed Mr Medlicott to draft a will conferring on Mr Walker a different (and bigger) benefit than he was entitled to under the terms of the will, as executed by the testatrix (i.e. a specific devise of the house solely to him). Mr Medlicott could not be held negligent for failing to include in the will a specific devise to Mr Walker, if Mr Medlicott drafted the will in accordance with the instructions of the testatrix.

For the reasons given by Sir Christopher Slade I agree that the judge was entitled to find on the evidence that Mr Medlicott prepared the draft will in accordance with the instructions given to him by the testatrix on 4 April 1986. That conclusion is consistent with the terms of the will, both in draft and as executed, and with Mr Medlicott's detailed contemporaneous attendance note of the meeting of 4 April 1986. The judge heard and saw Mr Medlicott give evidence at the trial. The judge was entitled to conclude that there was no negligence on the part of Mr Medlicott.

(2) Knowledge and Approval and Rectification of Wills .

Counsel identified two relevant aspects of a solicitor's potential liability for negligence to a disappointed beneficiary which were absent from White -v- Jones (supra): (a) The court normally approaches a will duly executed by a competent testator with the assumption that the testator knew and approved of the contents of the will: cf Wintle -v- Nye [1959] 1 WLR 284 (a probate case in which the House of Lords held that the court ought not to pronounce in favour of the validity of a will where the circumstances under which the will was prepared raised a well grounded suspicion that it did not express the testator's mind). In this case no doubt has ever been cast on the validity of the will executed by the testatrix omitting the specific devise of the house which Mr Walker claims she intended to include in the will.

(b) A limited exception to the doctrine of knowledge and approval in the case of a valid will is made by statute in cases of rectification. The jurisdiction of the court to rectify a will was not an issue in White -v- Jones (supra): as a result of the solicitor's negligence there was no will to rectify. The court has no jurisdiction to create a will for a testator, save in the special case of a statutory will for a mental patient. Before 1 January 1983 the court had no jurisdiction to rectify a will although, as appears from Re Morris [1971] P 62, there was a limited power to omit words from the probate on proof that they had been included in the will by fraud or mistake.

The court's jurisdiction to rectify a will was conferred by section 20 of the Administration of Justice Act 1982, which came into force on 1 January 1983. The court has jurisdiction to rectify a will so as to carry out the intentions of the testator, if it is satisfied that the will is so expressed that it fails to carry out the testator's intentions in consequence of a clerical error or of a failure to understand his instructions. Such an application cannot be made, without the permission of the court, after the end of the period of six months from the date on which representation with respect to the estate was first taken out.

Both the reasonable assumption that a competent testator knows and approves the contents of a will executed by him and the availability of rectification are relevant to the approach of the court to a negligence claim against a solicitor for allegedly failing to understand and follow the instructions of a testator. In my judgment, these two factors strengthen the case for the court requiring convincing evidence that the testator gave instructions to the solicitor for the particular benefit to be conferred by the will on the intended beneficiary.

Where, for example, the solicitor admits his failure to understand and carry out his instructions, the obvious remedy of the aggrieved beneficiary is an application to the court for rectification. If the application succeeds, he may also have a damages claim against the solicitor for the costs incurred in the rectification application. Indeed, in such cases the solicitor (or more probably his insurers) might well volunteer an indemnity in respect of the costs.

If this course is not taken in cases where there is undisputed or convincing evidence of the solicitor's failure to understand and carry out the testator's intentions, an anomalous situation, which could have been cured by rectification, would arise: the unrectified will would be effective to confer a benefit on a person who was not, on the facts, intended by the testator to benefit from his estate; and a benefit for a person whom the testator intended to benefit from his estate would be provided not from his estate, as he intended, but by his solicitor (or his solicitor's insurers). That situation would not correctly reflect the intentions of the testator or the justice of the case. Further, as pointed out in argument, a possibility of abuse would exist.

In the present case, the position taken by Mr Medlicott on the instructions given to him by the testatrix placed the same difficulty in the way of a negligence claim by Mr Walker as in the way of a rectification application by him. In his amended defence Mr Medlicott pleaded that if, which he denied, he had been negligent in not carrying out the instructions of the testatrix, then Mr Walker was under a duty to mitigate the loss suffered in consequence of that negligence by seeking rectification.

I agree. His essential complaint was that the will did not represent his aunt's wishes as a result of a failure on the part of Mr Medlicott to carry out the instructions of the testatrix in the drafting of the will. If he wished to establish that case, rectification was obviously the appropriate remedy and should have been sought by him within the time limit set by statute. If, on the one hand, he had succeeded on rectification he would have inherited the house;any damages for negligence would have been confined to the costs incurred in putting right the terms of the will. If, on the other hand,he had failed on the rectification application, he would also have failed in his negligence claim; he would not have been entitled to inherit the house and he would have not have suffered any loss and damage recoverable from the solicitor.

I add that the mitigation point does not necessarily arise for decision since, for the reasons given by Sir Christopher Slade, there was no breach of any duty of care owed by Mr Medlicott to Mr Walker.

The appeal should be dismissed.

LORD JUSTICE SIMON BROWN: I agree with my Lords and add only a short judgment of my own, confined to the second ground on which we are all agreed that this appeal should fail - the appellant’s failure to mitigate his loss by seeking rectification of the will.

That a plaintiff must act reasonably in the avoidance or mitigation of his loss is clear. It is, however, a well established principle that the standard of reasonableness required of him is not a high one given that the defendant is an admitted (or, for present purposes, assumed) wrong-doer. Amongst the rules extracted from the case law by McGregor on Damages, 16th Edition, at paragraph 327 is that:

"A plaintiff need not take the risk of starting an uncertain litigation against a third party."

Cited in support of that rule is Pilkington v Wood [1953] Ch.770, a decision already referred to by Sir Christopher Slade. The soundness of the basic rule and the correctness of that decision I do not for one moment doubt. What is critical to the present appeal is an understanding of the important differences between that case and this.

In Pilkington v Wood the plaintiff bought freehold land from a seller who purported to convey it as beneficial owner, the defendant acting as the plaintiff’s solicitor in the transaction. When the plaintiff later tried to sell the property he found the title was defective, the seller having been the trustee of the property and having committed a breach of trust in buying it himself. In the plaintiff’s action against the defendant solicitor for negligence, the latter admitted negligence but contended that before suing him the plaintiff ought to have mitigated his damage by suing the seller on an implied covenant of title. This contention was rejected because, even accepting that the defendant had offered an adequate indemnity against costs for an action against the seller and that the seller was solvent and therefore worth suing, it was clear that the seller would both resist the claim and also claim over against his own solicitors and, more importantly still, it was by no means clear that the plaintiff had a good claim against the seller. The central passage in Harman J’s judgment is this:

"I do not propose to attempt to decide whether an action against [the seller] would lie or be fruitful. I can see it would be one attended with no little difficulty. I am of opinion that the so-called duty to mitigate does not go so far as to oblige the injured party, even under an indemnity, to embark on a complicated and difficult piece of litigation against a third party. The damage to the plaintiff was done once and for all directly the voidable conveyance to him was executed. This was the direct result of the negligent advice tendered by his solicitor, the defendant, that a good title had been shown; and, in my judgment, it is no part of the plaintiff’s duty to embark on the proposed litigation in order to protect his solicitor from the consequences of his own carelessness."

In that case, it will readily be seen, the defendant was admitting negligence and yet contending that the plaintiff should embark on complicated litigation with only doubtful prospects of success. Here, by contrast, the defendant was denying negligence and contending that the plaintiff would have no greater difficulty in establishing a claim for rectification than in establishing liability against him. Indeed, as Sir Christopher Slade has pointed out, his difficulties in the negligence action were greater given the real possibility that this whole unfortunate case is explicable in terms of a non-negligent but rectifiable misunderstanding by Mr Medlicott of the testatrix’s intentions.

It seems to me an entirely different thing in these circumstances, and altogether more reasonable than in Pilkington v Wood , to require the plaintiff to pursue an alternative remedy, namely to look first for rectification before suing his solicitor. Were the rectification claim to fail, then by definition the plaintiff could not have succeeded against his solicitor. Miss Wicks rightly accepts that no less convincing evidence is required for an action against the solicitor than for a claim for rectification.

I recognise, of course, that even were the claim for rectification to succeed, that would still leave the plaintiff with some loss, if only for the costs and delay of achieving rectification. But in my judgment that consideration cannot begin to justify suing the solicitor first. Rather there are other powerful considerations here which to my mind make it reasonable to require the plaintiff to sue his solicitor only as a last resort (if, say, through no fault of his own, it had been too late to obtain rectification, or if the solicitor would not subsequently meet the costs of obtaining it).

The first such consideration stems from an important distinction, already noted by Sir Christopher Slade, between this case and the previous run of cases - Ross v Caunters [1980] Ch 297, White v Jones [1995] 2 AC 207, and Carr-Glynn v Frearsons [1998] 4 AER 225 - namely that whereas in each of those the disappointed beneficiary would have had no remedy at all but for his claim in negligence, here he has. There can be no doubt that this consideration (the want of an alternative remedy) played a large part in deciding the majority of the House of Lords to develop the law as they did and to overcome their misgivings about thereby adventitiously enhancing the size of the estate. Whilst, however, in common with my Lords, I conclude that the duty now held to exist in these cases must logically extend also to someone in the plaintiff’s position, I see no reason why as a matter of policy the law should not require of him that he seeks initially to mitigate his loss by pursuing a claim for rectification.

The second and related consideration is that referred to by Mummery LJ as the obvious possibility of abuse in this class of case. Where, as here, there is always the risk of a family manufacturing a negligence claim in order to enhance the value of the estate from which the family will benefit at the expense of the solicitor, the court is justified in requiring the plaintiff instead to pursue his remedy of rectification. I hasten to say that there has been no suggestion whatever in the present case that this plaintiff or his witnesses have been guilty of any such deceit. I make the point merely to indicate why the situation here is, in a number of respects, so very different from the norm.

Overall I regard the circumstances of the present case as so special as to take it outside the general rule to which I referred at the outset of this judgment: this case is exceptionally one in which the plaintiff should properly be required first to have taken the risk of claiming rectification, assuming he wished to risk litigation at all.