England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF MR JUSTICE HART

		Royal Courts of Justice Strand London WC2 Thursday, 28th June 2001

1. LORD JUSTICE PETER GIBSON: This is an appeal in a probate action. Betty Rice-Hunt, the testatrix, was born on 3rd August 1907 and died on 19th November 1996. She was twice married. By her first marriage she had a daughter, the defendant, Jill Kenny. That marriage ended in divorce. She then married Alva Rice-Hunt who already had a son by a previous marriage, Alan Rice-Hunt. Mrs Kenny has two daughters, Jane Cooke ("Jane") and Virginia Whiston ("Virginia") and a son, Patrick Sharpin ("Patrick").
2. The testatrix made four wills in the 18 months prior to her death. By the first, dated 30th May 1995, she appointed Mr Rice-Hunt and the partners in a firm of solicitors, Arthur & Co, to be her executors. She gave her flat at 20 Park Lodge, St John's Wood to Mr Rice-Hunt, subject to tax, and after giving a number of other legacies she left the residue to Mrs Kenny. Her second will was made on 23rd March 1996. This was a home-made will written out in long hand by Roger Isaacs, a chartered accountant and family friend, whom she appointed sole executor. After giving some legacies she left the residue to Mr Rice-Hunt. In the will she stated that she did not leave anything to her children and grandchildren as she considered them to be financially secure. She also gave express authority to the executor to defend the will if contested. The third will was dated 11th May 1996 and was professionally drawn. By it she appointed Mr Isaacs sole executor. She gave her flat to Mr Rice-Hunt free of tax and gave a number of other legacies and left the residue to be divided equally between Mr Rice-Hunt, Mrs Kenny, Jane, Virginia and Patrick's wife Monica Sharpin. The will in Clause 8(d) gave the executor power to use and expend the residue to contest any legal action brought against the estate. The fourth will was dated 27th June 1996 and was in the same form as the third will. The reason for its execution appears to have been this: the third will had been witnessed by two people whose addresses were not given in the will and who, Mr Isaacs believed, were normally resident in Australia. He had been advised that if the will was challenged, great weight would be given to the evidence of the witnesses, and he feared that the Australian witnesses would be difficult to contact. He therefore suggested, and the testatrix agreed to, the execution of the fourth will which was witnessed by London residents.
3. On the death of the testatrix Mr Isaacs found himself in the unfortunate position of being the sole executor of the fourth will which he believed to be a valid will but which he found to be the subject of a major dispute within the family of the testatrix. Mrs Kenny, supported by Monica Sharpin, believed that the testatrix did not have testamentary capacity when making the fourth, third or second will. Mrs Kenny wished to propound the first will as the true last will of the testatrix. Mr Rice-Hunt, on the other hand, believed that the testatrix had testamentary capacity when executing the fourth will. Jane and Virginia are, unhappily, not on speaking terms with their mother. They are content that probate should be granted for the fourth will, not for any pecuniary reason because they have assigned their interests to Mr Rice-Hunt.
4. Mrs Kenny entered a caveat in about January 1997. Mr Isaacs was unwilling to take proceedings to prove the fourth will without an indemnity from Mr Rice-Hunt which was given on 17th July 1998. This provided that in consideration of Mr Isaacs agreeing to commence and thereafter to prosecute, subject to the advice of solicitors and counsel, proceedings in the High Court to obtain probate on the fourth will in solemn form Mr Rice-Hunt would fully indemnify Mr Isaacs. Thus once proceedings had been commenced, if solicitors and counsel advised against prosecuting proceedings, there was no obligation on Mr Isaacs to prosecute proceedings to obtain probate on the fourth will. On 5th August 1998 Mr Isaacs, through London solicitors Lloyd & Co, commenced proceedings against Mrs Kenny alone seeking probate of the fourth will. Mrs Kenny put in a defence and counterclaim in which she alleged that at the time of the execution of the fourth will the testatrix was not of sound mind, memory and understanding. She asked for probate in solemn form of the first will. The defendants to the counterclaim were Mr Isaacs, Mr Rice-Hunt, Jane, Virginia and Monica Sharpin. Lloyd & Co, on 21st September 1998, put in a defence to the counterclaim for Mr Isaacs. They also were the solicitors on the record for Mr Rice-Hunt. They put in a separate defence to the counterclaim for him on the same day although it was in identical form to that put in for Mr Isaacs.
5. The probate action proceeded through its interlocutory stages. On 7th January 1999 a Tiverton solicitor was appointed administrator of the estate. On 23rd June 1999 Master Bowles directed that the trial take place in the first three months of 2000 with an estimate of five days. Amongst the directions given by the Master was one that statements of witnesses of fact should be exchanged and filed by 18th August 1999. On 11th November 1999 time was extended by the Master until 6th January 2000. Witness statements were sent to Lloyd & Co by Mr Isaacs' solicitors on 5th January. By then the case had been listed for hearing in the week commencing 7th February 2000.
6. Back in August 1999 counsel then instructed for Mr Isaacs had advised Lloyd & Co that there was a conflict of interest between Mr Isaacs and Mr Rice-Hunt. A copy of the letter which recorded that advice was sent to Mr Rice-Hunt. We are told by Mr Patrick Cooke, on behalf of Mr Rice-Hunt, that at the end of November 1999 it was decided that because of the conflict of interest Mr Isaacs and Mr Rice-Hunt had to be separately represented.
7. In early January 2000 Mr Isaacs decided to change solicitors. The cause of that appears to have been the sudden retirement at the beginning of the month of the partner who had been dealing with the case in Lloyd & Co. On 10th January Mr Isaacs spoke to Lloyd & Co, telling them that solicitors in Trowbridge, Withy King, were taking over the case. Withy King were not willing to act as solicitors for Mr Rice-Hunt, no doubt because of the perceived conflict of interest. Mr Rice-Hunt appears to have been kept informed of these developments. On 17th January Mr Isaacs wrote to him because of the indemnity, sending him the letter of engagement of Withy King and their terms of business. On 20th January Withy King wrote to Mr Rice-Hunt, who had earlier provided Lloyd & Co with a witness statement, and asked him to attend court in order to give evidence.
8. Mr Rice-Hunt, as a defendant to the counterclaim, still had Lloyd & Co as his solicitors on the record, but he decided to dispense with legal representation. On 27th January 2000 he served notice that he was acting in person. Mr Cooke, who is Jane's husband, assisted him in the presentation of his case. It is clear from Mr Cooke's witness statement that he was "convinced that Mr Rice-Hunt's claim to his inheritance is a just one".
9. At the trial which commenced on the afternoon of 9th February before Mr Justice Hart Mr Isaacs was represented by counsel, Mr Andrew Francis. Mrs Kenny was also represented by counsel, Mr Cooper, who appears before us today. Mr Cooke had drawn up his own witness statement and, subject to three paragraphs being struck out, it was allowed in as evidence. Mr Cooke gave oral evidence and was cross-examined on his statement. Mr Rice-Hunt also gave evidence and was cross-examined by counsel for Mrs Kenny and was also asked questions by Mr Cooke, whom the judge allowed to act for Mr Rice-Hunt. Mr Cooke plainly played an active part on behalf of Mr Rice-Hunt at the hearing as we can see from the transcripts of evidence and the judge's judgment.
10. The judgment was given by the judge on 14th February. He said the evidence before him was that the testatrix began to make odd statements from the end of 1995 onwards. There was evidence from four witnesses of bizarre conversations and of what the judge described as the increasingly warped view of the world of the testatrix. She laboured under a delusion that Mrs Kenny was a leader of Born Again Christians, in charge of the organisation's firearms and that the Pope, the Queen, the Prime Minister and her solicitor were also in the same movement. Some two months before she died she was sectioned under the Mental Health Act. The judge heard evidence of two expert psychiatrists, Dr Mahendra, called by Mr Isaacs, and Dr Beary, called by Mrs Kenny. The judge preferred the evidence of Dr Beary who diagnosed a paranoid psychosis present as early as March 1996 to that of Dr Mahendra, who found no such impairment of the testamentary capacity of the testatrix. The judge applied, as was common ground was correct, the test laid down by Sir Alexander Coburn CJ in Banks v Goodfellow [1870] 5 QB 549 at 565.
11. Mr Francis, for Mr Isaacs, accepted in the circumstances present in the case that it was for those seeking to uphold any of the last three wills of the testatrix to prove on a balance of probabilities that their content had not been influenced by the insane delusions from which the testatrix had before and after been suffering. As Lord Justice Robert Walker, hearing the application for permission to appeal to this Court, observed, Mr Francis was right so to accept. The judge noted that applying that test Mr Francis accepted that the second will could not be supported. That concession was made in the light of the evidence which had then been heard. The judge explained why that concession was correct. There was clear evidence of delusions and Mrs Kenny was completely cut out from benefiting under the second will. The judge then addressed Mr Cooke's detailed submissions on the validity of that will but the judge rejected them, holding that Mr Francis was right to make the concession which he did.
12. The judge found the question of the validity of the third and fourth wills much more difficult to decide. They were rational on their face and reasons had been given why they were executed in that form. But he considered that it was simply not possible to accept that the content of those wills was not materially influenced by the delusions from which the testatrix suffered. Accordingly, he said he was not satisfied that when she made any of the last three wills she had testamentary capacity and he pronounced in favour of the first will which does not seem to have attracted any such criticism.
13. The judge gave a separate judgment on costs on 16th February 2000. He bore in mind as an important consideration that to the extent that any costs were ordered to be paid out of the estate itself, those costs would, in effect, be borne by Mrs Kenny as a residuary legatee. The judge first considered Mr Isaacs' costs. He noted the general rule that an executor of a will has a duty to propound it until faced with compelling evidence that it was not the true last will of the deceased. But he said that it would not be right to apply that rule to entitle Mr Isaacs to have the whole of his costs out of the estate. The judge referred to the indemnity and to the litigation being conducted until January 2000 in the manner of hostile and adversarial litigation. He said that when Mr Isaacs had new legal representation he sought to extract himself from the adversarial role previously adopted by him and to present himself as playing a purely neutral role. The judge criticised the utility of that role. He went on to say this (page 28 of the transcript):

"The result has been, I think, unfortunate at least to this extent, in that as I was told by Mr Cooke Mr Alan Rice-Hunt had assumed throughout that the principal role in propounding the will would be taken by Mr Isaacs and was dismayed to find, when this action came on for hearing, that the Claimant, Mr Isaacs planned to and indeed did adopt a much more neutral role, throwing unexpectedly, as he tells me through Mr Cooke, on to his shoulders the task for which he was not fully prepared of supporting one or other of the 1996 wills."

14. The judge therefore did not think it right to apply the general rule save that all Mr Isaacs' costs incurred in seeking advice as to what he should do before the commencement of the proceedings and in issuing the writ, down to and including the filing of an affidavit of testamentary scripts, should come out of the estate.
15. The judge then considered whether Mr Rice-Hunt should pay any of Mrs Kenny's costs. He said that it was not unreasonable in the way the evidence very gradually emerged that Mr Rice-Hunt should contest Mrs Kenny's assertions. He said that it was unfortunate that neither side had laid its cards properly on the table at an early stage. The judge referred to very belated exchange of witness statements and said that the costs in respect of the period until after that exchange should be left to lie where they fell and he made no order in respect of them. The judge, after hearing argument as to the precise date, said Mrs Kenny's costs after 15th January 2000 would be paid by Mr Rice-Hunt. In so doing the judge referred to Calderbank letters which he said were made and continued to be made up to 4th February 2000.
16. The judge then raised with Mr Cooke for Mr Rice-Hunt the question whether Mr Rice-Hunt would wish to have permission to appeal. The judge was aware from a statement prepared by Mr Cooke for the hearing on costs that Mr Cooke was by then complaining that other evidence could and should have been called and that there was a mistrial because the executor did not do what Mr Cooke and Mr Rice-Hunt thought he was going to do in the conduct of the case. The judge said he had to decide the case on the evidence put by the parties before the court and he refused permission to appeal.
17. A notice of appeal was then filed by Mr Rice-Hunt seeking permission to appeal on three grounds. Ground 1 attacked the judge's conclusions in relation to the third and fourth wills. Ground 2 was an attack on the judge's conclusion in relation to the second will. Both those grounds were found by Lord Justice Robert Walker, on 8th June 2000, not to offer any real prospect of success. The third ground was expressed like this:

"The trial process resulted in severe prejudice to Alan Rice-Hunt who was deprived of the opportunity of having his case carefully explored by reason of the fact that:

a. The solicitors who acted for the Claimant and Alan Rice-Hunt were replaced barely a month before the commencement of the trial; these solicitors declined to act for Alan Rice-Hunt who thereafter acted in person while still indemnifying the Claimant in respect of his costs.

b. Alan Rice-Hunt believed that witness statements of various persons, who could speak as to the apparent good mental health of the deceased had been selected and that those persons would be called by the Claimant at trial.

c. Prior to the trial itself, Alan Rice-Hunt believed the Claimant would continue to actively support the 2nd, 3rd and fourth Wills, where as it became apparent only after the commencement of the trial that he was now adopting a neutral stance. Alan Rice-Hunt was not therefore prepared to conduct the case which he believed would be conducted on behalf of the Claimant."

18. Lord Justice Robert Walker, despite considerable doubts, found the third ground "not wholly unarguable" and so gave permission to appeal on that ground alone.
19. Mr Rice-Hunt appears before us today in person with Mr Cooke as his McKenzie friend. At the commencement of the hearing he asked that Mr Cooke should be allowed to present his appeal as he told us that he was not able to do so himself. In those circumstances we took the exceptional course of allowing Mr Cooke to act as advocate for Mr Rice-Hunt. I would pay tribute to the courtesy and moderation with which he has addressed us. Mr Cooke submits that Mr Isaacs and Withy King gave Mr Rice-Hunt every reason to believe that they would actively support the second, third and fourth wills, that it was only after the trial began that it became apparent that they were not actively supporting those wills and were taking a neutral stance, that had Mr Rice-Hunt known that Withy King and Mr Francis were not only going to take a neutral position but were going to destroy the continuity of the wills by undermining the second will Mr Rice-Hunt would have been mad to allow them to walk through the court room door with an open-ended indemnity, that Mr Isaacs' lawyers failed to fulfil the job they had been employed to do and that Mr Rice-Hunt's part in the case only grew as they defaulted and that it only became clear in final submissions that Mr Rice-Hunt had been forced into a position for which he was unprepared.
20. It is further said that had Mr Rice-Hunt not been deceived into believing that they were going to present a proper case he could have called his own witnesses to counteract the false impression given by Mrs Kenny's witnesses. Six witnesses are then named as persons who could have been called. One was Anita Isaacs, said to be a lifelong friend of the testatrix, who was witness to the second will and was present, we are told, throughout the trial.
21. The second and third are De Lianyi Song and Dr Rong Guo who lodged with the testatrix until 1993 and visited her regularly thereafter, the latter dining with her on the evening when the testatrix executed one of the wills. The fourth is Jane, who last saw the testatrix on 10th April 1996, was in touch by letter and telephone after that. The fifth is Virginia, who had seen the testatrix three days before the third will was executed. The sixth is Mr Rice-Hunt himself who spoke to her regularly and saw her a week after the execution of the fourth will.
22. Despite the evident strength of feeling with which these submissions are made, this court must view the matter more dispassionately. The question for the court is whether the trial process resulted in such severe prejudice to Mr Rice-Hunt, as he claims, that the order made by the judge, in justice, cannot stand and there should be a re-trial. It is to be noted that no criticism is made on this appeal of the conduct by the judge of the trial before him. The complaints are directed against Mr Isaacs, his solicitors and counsel and also Lloyd & Co as Mr Rice-Hunt's own solicitors until 27th January 2000.
23. As is made clear by the notice of appeal, the argument for Mr Rice-Hunt is that he was deprived of the opportunity of having his case carefully explored for three reasons: one relating to the absence of solicitors for Mr Rice-Hunt; the second relating to the witnesses who could have been called; and the third relating to the neutral stance adopted by Mr Isaacs at the trial. I should make clear at the outset that no evidence has been filed in support of the points on which this appeal is brought. Mr Rice-Hunt has not sought to explain in evidence how he came to be taken by surprise in the way which he now claims that he was at the trial. Allegations such as that Mr Isaacs and Withy King gave a misleading impression or that Mr Rice-Hunt was deceived by some unspecified deceiver are simply not made out on the facts. What Mr Cooke frankly accepted was that he and Mr Rice-Hunt were so convinced that they would succeed in establishing probate for the fourth will, being certain in their own minds that the testatrix had testamentary capacity, that they had what proved to be a false confidence.
24. So far as complaint is made in relation to the replacement of Lloyd & Co as solicitors for Mr Isaacs and himself only a month before trial that is based on an incomplete presentation of the facts apparent from the documents put before us. In August 1999 Mr Rice-Hunt was told of counsel's advice to Lloyd & Co, that there was a conflict of interest between Mr Isaacs and Mr Rice-Hunt. That advice was passed to Mr Rice-Hunt in the form of a copy of the letter recording that advice. Although Mr Cooke has told us that he believed that the conflict related to a dispute over the timing of the sale of the testatrix's flat, that plainly was not the relevant conflict. It could not have been a reason why advice would be given by lawyers that Mr Isaacs and Mr Rice-Hunt had a conflict of interest. If there were any doubts as to what the conflict was, it would surely have been readily explicable by Lloyd & Co, who could have been asked to explain. But it does not appear that that elementary step was taken, this despite the facts that at the end of November Mr Rice-Hunt knew that he would require representation separate from that for Mr Isaacs. When instructions were withdrawn from Lloyd & Co by Mr Isaacs at the beginning of January 2000, Lloyd & Co remained Mr Rice-Hunt's solicitors. He knew that Withy King were not prepared to act for him. It surely should have occurred to him that the role which Mr Isaacs had previously adopted in the proceedings might not continue, but nevertheless no inquiry appears to have been made about this. Mr Rice-Hunt could have chosen to go to other solicitors if he was dissatisfied with Lloyd & Co. He did not. Instead, he chose to act in person, no doubt encouraged by the thought that he had Mr Cooke to assist him.
25. Any doubts about the role of Mr Isaacs in the hearing to be held before the judge should have been dispelled when Mr Francis's skeleton argument became available to him. We were told by Mr Cooke that he thinks that he did not receive that skeleton argument until the start of the hearing. That is very surprising because skeletons, as is well known, have to be exchanged in advance of a trial. Mr Cooke has told us that he received Mr Cooper's skeleton shortly before the trial. He could surely have inquired where was Mr Francis's skeleton if he had not received it.
26. In Mr Francis's skeleton he explained what Mr Isaacs' case was, that is to say, that the fourth will, being rational on its face, was made at a time when Mr Isaacs had no reason to doubt the capacity of the deceased. Mr Francis went on to say this:

"4.7 In bringing the action to propound the will a claimant does no more than rely on the principle that if the will is apparently valid and there are no reasons to doubt its validity of which he is aware, there is no good reason why he should not commence proceedings for the purpose of establishing validity of that will.

4.8 However, that is as far as the claimant can now proceed as he has now seen the defence and counterclaim and evidence from Mrs Kenny, friends of the deceased and the doctors.

4.9 As he asserts no beneficial interest, the claimant's case is one where he places his evidence and the evidence of the attesting witnesses, the latter being witnesses of the court, before the court for the court to decide whether the last will is valid. Now that validity has been put in issue by Mrs Kenny, he adopts the same approach in respect of will 2 and will 3, that the evidence of capacity is directed to those wills as well as will 4.

4.10 It is for Mrs Kenny and Mr Rice-Hunt to engage in the contest to establish the true last will of the deceased in view of their beneficial interest."

27. Nevertheless, Mr Francis went on to make comments on the evidence before the court and, in particular, on the medical evidence. He made clear that he though little of the evidence of Dr Beary whereas he made no such comment in relation to the evidence of Dr Mahendra. That skeleton must surely have alerted Mr Cooke and Mr Rice-Hunt, if they were willing to read what was plainly written, that Mr Isaacs was choosing to adopt a neutral stance and that fact ought to have been present to their minds long before the final submissions, which is the point at which, we are told, they first became aware that they needed to adopt a more active role.
28. Mr Cooke has told us that he also did not receive the documents for the trial until the end of the first day. Again he would have seen from those documents what witness statements there were and who was going to give evidence. They plainly took a decision as to who should give evidence because Mr Cooke chose to give evidence and Mr Rice-Hunt also did so.
29. So far as complaints are made about Mr Rice-Hunt being left without solicitors, it has to be said that that was as a result of his own choice, and perhaps his own over-confidence in the outcome of the litigation. Certainly there is nothing that would suggest that the trial was an unfair one because of that.
30. As for witnesses, I have already noted that witness statements were ordered to be exchanged before Lloyd & Co left the scene. Thus Mr Rice-Hunt knew or should have known weeks before the commencement of the trial, because he could readily have found out by inquiry, who were the witnesses due to give evidence in support of the conclusion which he was seeking to achieve. He could have checked what was going to be said in those witness statements. But it seems that by opting to appear for himself he did not take this elementary action which would have been obvious to any lawyer. He could have asked Lloyd & Co, before he withdrew instructions from them, as to the steps he should have taken. He did not ask for permission to call further witnesses, even though Mr Isaacs was present at the trial. He did not ask for an adjournment. In any event, I am far from persuaded that the evidence from the witnesses whom he has suggested could have given useful evidence would have affected the decision of the judge. It was not and is not in dispute that the testatrix was capable of holding normal conversations. It was only in relation to specific topics, it appears, that her delusions were made manifest. As Mr Cooper has pointed out, the crucial question for the judge once the testatrix had been shown to suffer from delusions was whether the content of the last three wills was not materially influenced by her delusions. The burden of proving that fell on those who asserted it. I am therefore not satisfied that even if these further witnesses could have been called it would have had a material effect on the outcome. The blame for the fact that they were not called must rest to a large extent on Mr Rice-Hunt.
31. Finally, as for the neutral stance said to have been adopted by Mr Isaacs, it is apparent from the transcript of evidence that at the hearing counsel for Mr Isaacs acted in many ways like counsel for Mr Rice-Hunt would have acted. Mr Francis called Dr Mahendra and cross-examined Dr Beary. True it is that he accepted that the second will could not be supported. But that was after the evidence had been heard which made it plain that it was hopeless to seek to argue that the testatrix did not suffer from delusions. As I have pointed out, the judge held that Mr Francis was right to make the concession which he did. I cannot see how this supports an argument that there should be a new trial. Mr Isaacs was entitled to act on the advice of his counsel. It was for Mr Rice-Hunt, as a person who chose no longer to have the assistance of solicitors, to decide on the course which he wished to adopt in his own interest.
32. I do not doubt that Mr Rice-Hunt and Mr Cooke are sincerely dissatisfied with the way Mr Isaacs' case was conducted at the hearing before the judge. They are equally aggrieved, I have no doubt, as to the conduct of Lloyd & Co. But I can see no reason why that dissatisfaction and that grievance should justify a retrial.
33. In my judgment, nothing has been put before us to show that there was a mistrial as a result of the unfortunate sequence of events which led to Mr Rice-Hunt not having legal representation and to his over-confidence in the outcome of the case. It was only once the decision of the judge had been given that the complaints which are now made first surfaced. Accordingly, despite my personal sympathy with Mr Rice-Hunt, I would dismiss the appeal.
34. I can deal shortly with the cross-appeal. The point which is now taken by Mr Cooper is that the judge should have given effect to the fact that a Calderbank letter had been written on 30th March 1999 addressed to Lloyd & Co as solicitors to Mr Rice-Hunt, making an offer which, had Mr Rice-Hunt accepted it, would have been far more advantageous to him than the result which has now been achieved. Mr Cooper submits that the proper order which the judge should have made was one substituting for the date of 15th January 2000 the earlier date of 30th March 1999 as the date from which Mr Rice-Hunt should be responsible for Mrs Kenny's costs. It is not entirely clear whether Mr Cooper put the letter of 30th March 1999 before the judge. The judge makes no specific reference to it, but it would seem from the way he describes the correspondence that it is quite likely that the letter was in fact before him. Mr Cooper accepts, as he must, that while a Calderbank offer must be taken into account by a judge exercising his discretion on costs, the court nevertheless retains its discretion and the existence of a Calderbank letter should influence but not govern the exercise of discretion, (see the note in Civil Procedure para. 36.1.1.)
35. On the assumption that the judge did have the letter and took it into account, I can see no proper basis on which to interfere with the exercise by the judge of his discretion. He gave full and careful reasons why he made the order that Mr Rice-Hunt should pay Mrs Kenny's costs only after 15th January 2000, being of the view that Mr Rice-Hunt had not been able to make an assessment of the merits of the case against him until after the exchange of witness statements. Whilst the judge could have exercised his discretion in a different way, it seems to me that what the judge ordered was within the proper ambit of his discretion, and I would not interfere with that exercise.
36. Accordingly, I would dismiss the cross-appeal.
37. LORD JUSTICE SEDLEY: I agree that both the appeal and cross-appeal should be dismissed for reasons given by my Lord.
38. MR JUSTICE ASTILL: I agree, concerning the appeal and cross-appeal, with my Lords. As to the appeal, I agree it is clear that Mr Rice-Hunt, with the assistance of Mr Cooke, held a strong early opinion that his claim was bound to succeed. During the course of the trial it became apparent that that confidence was misplaced. However there was no application to the judge to call further evidence and no application to adjourn so as to adduce some or all the evidence now claimed to be missing.
39. Two things arise. First, it is difficult not to conclude that the present appeal arises more out of a feeling of injustice that the anticipated success did not materialise than out of a perception of actual injustice that occurred during trial and second, as my Lord, Lord Justice Gibson, has said, the evidence now identified by Mr Rice-Hunt as evidence that should have been called was unlikely to have had the impact intended. All the evidence demonstrates that the testatrix had long periods of clarity and only spasmodic delusions. The missing evidence would not in those circumstances have had the probative force claimed for it by Mr Rice-Hunt.
Order: Appeal dismissed with costs assessed at £8,000. Cross-appeal dismissed with costs assessed at £100.