England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
(CHANCERY DIVISION) Mr Justice Rimer

		Royal Courts of Justice Strand, London, WC2A 2LL Friday 2 February 2001

SIR MARTIN NOURSE :

Introduction

1. Over five days between 14th and 21st November 2000 we heard argument on an appeal and 13 listed applications relating to the estate of Lorenzo Perotti ("the deceased"), who died on 11th April 1984. The appeal and 11 of the listed applications arose out of an action, known as the main action, brought by Angelo Perotti, a nephew of the deceased, principally against Kenneth Corbett Watson, the attorney-administrator of the deceased's estate, and also against Mr Perotti's brother-in-law and sister, Vincenzo and Maria Abbate. (The remaining defendant, Mario Alfonso Impanni, will be referred to later.)
2. The remaining two listed applications arose out of a further action, known as the second action, brought by Mr Perotti against Mr Watson and his firm. On the sixth day, 23rd November, we heard argument on an application in a third action, known as the remuneration action. That application was disposed of in judgments delivered on that day and need not be further referred to.
3. The writ in the main action was issued on 17th March 1992. It took an inordinate time to come to trial, largely because of numerous interlocutory applications in which Mr Perotti was unsuccessful and was ordered to pay costs. Eventually, the trial started before Mr Justice Rimer on 27th January 1997. It lasted for 25 days, including reading time. On 26th March 1997 the judge delivered a 125-page reserved judgment which was largely favourable to the defendants. He started by dismissing a claim by Mr Perotti in respect of cash and chattels belonging to the deceased which he alleged had been misappropriated by Mr and Mrs Abatte. Apart from that, Mr Perotti's claims were directed mainly against Mr Watson in respect of alleged maladministration of the deceased's estate. They culminated in a claim for the removal of Mr Watson as administrator and the appointment of some other person in his place under section 50(1) of the Administration of Justice Act 1985. Although the judge was markedly critical of certain aspects of the administration, he declined to make such an order. On Mr Perotti's appeal to this court Mr Watson's removal (but not the claim against Mr and Mrs Abbate) has again been placed at the forefront of his case.
4. The background facts are fully stated in the first section of the judge's judgment headed "Background to the issues" at pp. 1 to 26 of the transcript. Except so far as will be necessary in order to explain the matters with which we have to deal, they need not be repeated. Mr Perotti, who has appeared in person both at the trial of the main action and in this court (as he has done at most of the other stages of this long and costly litigation) has put in a lengthy notice of appeal in the main action and has produced orderly paperwork in relation to the listed applications. In this court Mr Watson has been represented by Mr Davidson QC and Mr Semken, the latter of whom appeared for him below. Mr and Mrs Abbate appeared in person below, but have not appeared or been represented before us. Mr Impanni has not appeared or been represented either here or below.

Mr Perotti's application for a further adjournment

5. Mr Perotti's appeal in the main action was set down as long ago as 9th June 1997. The bundles due on 23rd April 1998 were not received until 16th September of that year, by which time an order for security for costs had been made against Mr Perotti, his appeal against it dismissed and the order complied with. On 17th December 1998 the full court directed that any further applications by either party were to be listed immediately before the substantive appeal. Between 23rd March 1999 and 12th January 2000 Mr Perotti set down 10 such applications, a process which necessarily delayed the hearing. It was not until 15th March 2000 that the parties were informed that the matter was ready to be listed. By that time the number of applications had risen to 13. On 4th April a hearing was fixed for 11th July 2000, with a time estimate of 8 days.
6. On 9th June Mr Perotti applied for "a general adjournment". His application was referred to Lord Justice Morritt, who was to preside at the hearing. He considered a letter dated 13th June from Mr Watson's solicitors to the court, in which, although they did not oppose an adjournment to the first available date after 1st November 2000, they did oppose the general adjournment sought by Mr Perotti. Lord Justice Morritt made observations and directions which were communicated to the parties by letters dated 15th June. Having referred to the previous history and stated that, in the circumstances, it required a strong case to justify any further delay, the letters continued:

"The appellant relies on the order of this Court made on 19th May 2000 declaring that he is entitled, notwithstanding the freezing order made on 24th July 1999 or the charging order made on 15 March 2000, to charge or sell the flat in which he lives to raise money to pay for legal representation on the hearing of the appeal. He seeks time within which to raise money, to instruct solicitors and for them to instruct Counsel and prepare for the hearing. He contends that the time between the date of the order, 19th May, and the date fixed for the hearing of the appeal, 11th July, is insufficient. Of itself I would not regard that as adequate reason to postpone the hearing because there is no evidence that in the period after the appeal was set down, 9th June 1997, and before the freezing order was made, 24th June 1999, the applicant, although free to do so, had sought to raise money by charging or selling his flat or to obtain legal representation for the hearing of the appeal.

However the only effective respondent does not oppose the application. In these circumstance, with reluctance, I allow the application of the appellant. But the adjournment must be to a fixed date, not generally as he asks, and that date must be during the Michaelmas Term 2000."

On 5th July the hearing was re-listed for 13th November 2000.

7. On 6th November Mr Perotti put in a witness statement in support of an application for a further adjournment. That application was referred to myself, and on 7th November I refused it, observing that, in the light of Lord Justice Morritt's observations and directions, it was plain that the case for a further adjournment was inadequate. Mr Perotti renewed his application at the start of the hearing on 14th November, by which time a witness statement in answer had been put in by Mr Watson's solicitor, Mr F A Cathie, and a further statement in reply had been put in by Mr Perotti. After Mr Perotti had made oral submissions for about an hour and a half we refused the application, saying that we would give our reasons in our substantive judgments.
8. As was the case in June, the foundation of the application was an order of this court made on 19th May 2000 whereby charging orders granted over a flat at 64 Ivor Court were varied so as to permit Mr Perotti to raise up to £80,000 of the proceeds of sale or of loans secured on that property for the purpose of obtaining legal advice and representation. Although he asserts that the flat is held in trust for his daughter, he subsequently borrowed £80,000 on the security of it. Further, between June and the beginning of November he sought the advice of two firms of solicitors and latterly wished to be in a position to be represented by leading counsel. However, by the time the application for a further adjournment was made on 6th November it was clear that Mr Perotti was not going to be represented at the hearing. He wanted further time to raise more money so that he could continue to be represented.
9. In his oral submissions Mr Perotti emphasised that his difficulties over obtaining legal representation had prevented him from preparing for the hearing. He claimed that he would not remember more than one quarter of all the points he wanted to make; that he needed time to correct misleading points in the skeleton argument of Mr Davidson and Mr Semken; and that transcripts of the whole of Mr Watson's evidence would have to be before the court in order that the appeal might be fairly determined. He relied on Article 6 of the European Convention on Human Rights.
10. For my part, as I listened to Mr Perotti's oral submissions and looked back on the long history of the litigation and the delays he had caused, I formed the view that there was no real likelihood that a further postponement would lead to Mr Perotti being represented at the adjourned hearing. Further, it was clear (as became clearer still during the hearing) that his knowledge of the matter in all its aspects was so comprehensive that he would not be prejudiced by having to go ahead and conduct the appeal and the applications there and then. There was nothing in his points about the skeleton argument and the transcripts. Finally, Mr Perotti was unable to dissuade me from the view that, in the light of Lord Justice Morritt's observations and directions in June, it was plain that the case for a further adjournment was inadequate.

The notice of appeal, the respondent's notice and fresh evidence

11. Having refused the application for an adjournment, we started the substantive hearing by dealing with four preliminary applications which had to be determined before the appeal in the main action could be embarked upon. They were, first, Mr Perotti's application to amend the notice of appeal; second, Mr Watson's application to strike out parts of the notice of appeal; third, Mr Watson's application to amend his respondent's notice; and, fourth, Mr Perotti's application to adduce fresh evidence of Italian law.
12. On 15th November we delivered judgments in which we ruled on those four applications. Mr Perotti's application to amend the notice of appeal was disallowed, except to a limited extent which included some green reamendments. Mr Watson's application to strike out parts of the notice of appeal succeeded and we made an order accordingly. We made no order on Mr Watson's application to amend his respondent's notice. We dismissed Mr Perotti's application to adduce fresh evidence of Italian law. In regard to most of the points raised it is unnecessary to add to what was said in the judgment I then delivered. In three cases, however, I said that we would give reasons for our decision when we came to deliver our substantive judgments.
13. First, Mr Perotti wished to make amendments to the notice of appeal in order to raise the principle of the decision in Nestle v. National Westminster Bank Plc [1993] 1 WLR 1260. He claims that Mr Watson was under a duty to invest the cash comprised in the estate in stock exchange securities or unit trusts and that, if he had done so, the estate would now be worth some £2m more than it is. That claim is squarely raised in the second action, which has yet to come to trial. However, Mr Watson has intimated that he is likely to apply to have that claim struck out on the ground that it ought to have been made in the main action; cf. Henderson v. Henderson (1843) 3 Hare 100.
14. In the circumstances, Mr Perotti sought to raise the Nestle claim in the main action by way of amendment to the statement of claim. He cannot do that at an appellate level. The stance which an appellate court should take towards a point not raised at the trial is in general well settled: see Macdougall v. Knight (1899) 14 App. Cas. 194 and The Tasmania (1890) 15 App. Cas. 223. It is perhaps best stated in Ex parte Firth In re Cowburn (1882) 19 Chancery Division 419, 429, per Sir George Jessell MR:

"The rule is that if a point was not taken before the tribunal which hears the evidence, and evidence could have been adduced which by any possibility would prevent the point from succeeding, it cannot be taken afterwards. You are bound to take the point in the first instance, so as to enable the other party to give evidence."

15. Clearly, if the point had been raised at the trial, Mr Watson might have wished to adduce evidence, including expert evidence in order to show that, if the Nestle principle was applicable, either there would have been no loss to the estate, or that it would have been far less than that for which Mr Perotti contends. In the circumstances, it was clear that the Nestle amendments could not be allowed.
16. Secondly, paragraph 3 of the unamended notice of appeal claimed that the Italian loan devolved under the deceased's Italian will of 1976, ie to Mr Perotti and his since deceased brother Guiseppe (Peppino) in equal shares. However, that claim was contrary to Mr Perotti's case at the trial, which was that the Italian loan was an asset of the deceased's English estate disposed of by his 1983 English will. We struck out paragraph 3 of the notice of appeal on the simple ground that it sought to raise an entirely new case which was not only not before the judge but was inconsistent with the case made by Mr Perotti at the trial.
17. Thirdly, when dismissing Mr Perotti's application to adduce fresh evidence of Italian law, I said that it was clear, any other objection apart, that the application could not succeed in the light of the striking out of paragraph 3 of the notice of appeal dealing with the Italian loan. However, it was also clear that the fresh evidence did not satisfy the conditions laid down in Ladd v. Marshall [1954] 1 WLR 1489. In particular, in relation to the first condition, it could not be said that the evidence was unobtainable with reasonable diligence for use at the trial. No doubt the explanation for its not having been obtained at that stage was that Mr Perotti was not seeking to make the case he now seeks to make. But that does not mean that the evidence could not, with reasonable diligence, have been obtained at that time.

Further preliminary applications

18. Also on 15th November, we dealt with two further preliminary applications. The first of them was an application by Mr Perotti for leave to appeal against an order of Mr Justice Rimer made on 31st March 1999 whereby he refused him leave to appeal out of time against an order of Master Moncaster made on 30th November 1995 disallowing an amendment in the form of paragraph 33 of the statement of claim. That paragraph would have alleged that Mr Watson had failed to disclose certain documents, in particular all Lloyds Bank documentation from the outset of the administration onwards. But on a subsequent application for specific discovery an order for disclosure of those documents was refused by the master, whose decision was affirmed by Robert Walker J on 4th October 1996. Mr Perotti applied for leave to appeal against Robert Walker J's order, but in an order of this court made on 2nd February 2000 it is recorded that that application was withdrawn at his request. Despite Mr Perotti's argument to the contrary, I am satisfied that that was an end of the application. It was in any event hopeless on the ground that, even if Master Moncaster ought to have allowed the amendment on 30 November 1995, Mr Perotti could not possibly have been permitted to reopen that decision more than two years after the trial of the main action had been completed. In the end Mr Perotti did not press the application and we dismissed it.
19. The second of the further preliminary applications consisted of two original applications to this court seeking to exclude reference, in one case, to a payment into court which had been made by Mr Watson and, in the other, to his written submissions used at a directions hearing in this court on 17th December 1998. These applications were also hopeless, the first because on 17th December 1998 the court made a direction expressly permitting reference to the payment into court and, secondly, because there was nothing improper in Mr Watson's making reference to his written submissions on that occasion. Again, the applications were not pressed and we dismissed them.

The appeal in the main action

20. On several occasions during the first two days we were at pains to point out to Mr Perotti that what we really wanted to get on and hear was the argument on his appeal in the main action. The preliminary applications having been disposed of by mid-afternoon on the second day, we adjourned early in order to give Mr Perotti more time to prepare himself. We allowed him a day to open the appeal. In the event his opening lasted from 10.00 am. until 3.00 pm. on the third day, 16th November. We allowed the same time to Mr Davidson, whose response lasted for the remainder of that afternoon and from 10.00 am. until 12.45 pm. on the fourth day, 20th November. Mr Perotti's reply was completed by the end of that afternoon. At the conclusion of the argument we announced that we would reserve judgment on the appeal.
21. As I have said, Mr Perotti's notice of appeal is a lengthy document. It raises many points. He asked us to take into account not only his oral submissions but also his written grounds of appeal. That I have sought to do. Having done so, I am satisfied that the points he dealt with in his oral submissions included all those which had any merit in them. I propose to address those points, in particular the removal of Mr Watson and the judge's decisions on costs.

The removal of Mr Watson

22. Mr Watson's removal as an administrator was dealt with by Mr Justice Rimer between pp. 121E and 124G of the transcript. Having read section 50(1) of the Administration of Justice Act 1985 and stated, correctly, that it was a matter for his discretion, the judge said at p. 122A:

"Angelo's case is that Mr Watson is unfit to continue to act as Lorenzo's administrator and that he should therefore be removed. He has made many criticisms of him and I have to say that I agree that some, although not all, are justified. Overall, I consider that Mr Watson has failed to bring any high degree of skill to the administration of this estate."

The judge then listed seven examples of what he regarded as Mr Watson's failures and continued at p. 122F:

"In my judgment, overall there are grounds on which the court could exercise its discretion to remove and replace Mr Watson; and I have to say that, at the conclusion of Angelo's somewhat brutal cross-examination of Mr Watson, during which his every act and alleged omission was exposed to public glare, I had formed a provisional view that the case for his removal was a strong one."

Later he repeated that there were grounds for removing Mr Watson and that the question was whether it would be right for him to exercise his discretion to do so.

23. In considering that question, the judge recorded that Mr Watson would be more than a little relieved to be removed, but that he did not volunteer for removal since he took the view that it might well be in the estate's interest as a whole that he should see the job through to the finish, a view shared by Mrs Abbate, who claimed to speak not just for herself, but also for other beneficiaries. The judge continued at p. 123F:

"But she points out that Mr Watson now knows the family, and is familiar with the problems, and that for a newcomer to take up the reins at this stage will serve no function other than to cause the incurring of additional costs which would be saved if Mr Watson were to remain in the saddle.

I find this reasoning compelling and persuasive."

24. Having then referred to the considerable cost to the estate in getting in a newcomer, the judge said at p. 124A:

"There is no evidence that any of the beneficiaries apart from Angelo want to see this happen. In considering how to exercise my discretion I consider that I must consider not just what Angelo wants but the interests of the estate and its beneficiaries as a whole. Whilst I have acknowledged that Mr Watson has displayed shortcomings in the administration of the estate to date, I do not question his integrity or honesty and I am prepared to accept that he is competent to complete this administration. "

Finally, the judge referred to the real problem over whom might replace Mr Watson, stating that the Public Trustee was unwilling to do so and that no institution or individual had been proposed by Mr Perotti. The judge concluded that, in all the circumstances, it was not a case in which he should replace Mr Watson.

25. Mr Perotti's basic submission on this question was that once the judge had criticised Mr Watson, a professional trustee, in the way that he had, his decision not to remove him was one which no reasonable tribunal could have taken. He sought to discount the view of Mrs Abbate by saying that what has become known as the alternative distribution (see below) would give her a profit after paying Mr Watson's costs. He said that it was wrong for her opinion to be taken into account. He sought to meet the difficulty of finding a replacement by proposing himself as administrator, alternatively by proposing an approach to the Law Society. In regard to section 50 he relied on the decision of this court in Collier v. Calvert (22nd July 1996 - unreported).
26. Such were Mr Perotti's principal submissions on this question. While I feel the force of his basic submission, I cannot agree that no reasonable tribunal could have refused to remove Mr Watson. The judge took a pragmatic view. In my judgment he was entitled to do so. The direction he gave himself was, as a matter of law, impeccable. He was perfectly entitled, and indeed bound, to take into account the view of Mrs Abbate and the suggested ground for discounting it is unimpressive. The judge was also bound to take into account the interests of the estate as a whole, the additional costs of the replacement and the difficulty of finding one. No reasonable tribunal could have acceded to the proposal that Mr Perotti should be appointed as administrator. It is very unlikely that the Law Society would have been able to help. The decision in Collier v. Calvert (where the judge below had made an order under section 50) establishes nothing of relevance except that this court will only interfere where there has been an error of principle or a decision which is plainly wrong. Here no error of principle on the part of the judge has been demonstrated. Nor can it be said that his decision was plainly wrong. I would therefore affirm it.

Removal of Mr Impanni as an executor

27. Mr Impanni was appointed as executor of the deceased's English will but he never proved it. The judge had some doubt as to whether he had jurisdiction under section 50 to remove a non-proving executor. In my view, if an executor named in a will has not proved it, there is nothing from which to remove him. The judge found it unnecessary to decide that question because he considered that there was in any event no justification for removing Mr Impanni. In that respect his exercise of discretion was again unimpeachable. I would affirm his decision on this point also.

Costs

28. Mr Justice Rimer made orders relating to the costs of the main action on 18th April 1997, 8th April 1998 and 10th November 1998. The effect of those orders can be summarised as follows. First, Mr and Mrs Abbate were ordered to pay Mr Perotti one-fifth of his costs down to 22nd December 1992 and Mr Perotti was ordered to pay Mr and Mrs Abbate the whole of their costs from 23rd December 1992 to 28th February 1996. Secondly, Mr Perotti was ordered to pay Mr Watson three-quarters of his interlocutory costs ordered to be costs in the cause, and also of the trial, down to 18th April 1997. Thirdly, no order was made as to the costs of the post-trial enquiries and investigations which were ordered to be made by the order of 18th April 1997. Fourthly, Mr Watson was given an indemnity out of the deceased's estate in respect of all his costs ordered to be paid by Mr Perotti (insofar as not recovered from Mr Perotti himself). In this court Mr Perotti has not objected to the first and third of those orders. He strongly objects to the second and fourth of them.
29. I have found the question whether the order for the payment by Mr Perotti of three-quarters of Mr Watson's costs should be upheld or not to be the most difficult of the questions we have to decide. After the judge had delivered his reserved judgment on 26th March 1997 there was extended argument as to the form of the order and costs. His reserved judgment on those matters was delivered on 18th April 1997. He considered the question of costs as between Mr Perotti and Mr Watson between pp. 12C and 21G of the transcript. His original proposal was that Mr Perotti should be ordered to pay four-fifths of Mr Watson's costs, but in discussion after judgment Mr Perotti persuaded him to reduce the proportion to three-quarters.
30. It is not in my view possible for Mr Perotti to complain of the judge's analysis of the issues on which he won and those on which he lost. Had it not been for his criticisms of Mr Watson's conduct of the administration, there would have been no case at all for interfering with his order. But while I have held that those criticisms did not invalidate the judge's decision not to remove Mr Watson, they were directly relevant to the proportion of his costs which Mr Watson was entitled to recover against Mr Perotti. In the light of those criticisms it would certainly have been open to the judge to award a lesser proportion than three-quarters. Another judge might well have done so. However, the question, like all questions of costs, was one for the discretion of the particular judge. It is therefore necessary to examine with care Mr Justice Rimer's exercise of his discretion in this case.
31. In relation to the question of costs the judge considered in some detail the conduct of Mr Perotti. At p. 14C he said that the thread which ran through the history of the case from its earliest days was a continuing, almost obsessional, desire on Mr Perotti's part to sue. He added that Mr Semken, with some justification, had described the action as in the nature of a vendetta. In that context he proceeded to quote some 12 examples of what Mr Perotti had said at various times between 1984 and 1992. At p. 18E he said:

"It is apparent that Angelo has for years been waiting to use the High Court as a platform for conducting the widest enquiry into the misdeeds he is convinced have been committed in connection with Lorenzo's estate ...The conclusion which I draw from all I have read, seen and heard is that Angelo has been resolved for years on suing Mr Watson and that, short of total capitulation by all defendants to all his claims, he has always intended to fight this action to its bitter end, which is precisely what he has done."

32. Had the judge's consideration of this question rested there, it might have been possible to say that he had not adequately taken into account the effect on the question of costs of his criticisms of Mr Watson's conduct of the administration. However, having gone on to observe that a plaintiff's success or failure in High Court litigation is ordinarily measured by the extent to which he does or does not achieve the remedies he claims, the judge continued:

"Angelo is entitled to say that, in the course of the trial, he exposed shortcomings on the part of Mr Watson in his administration of the estate, and I referred to them in my judgment. He can claim that he scored some points. But, after 25 days, the true extent of his success, measured in terms of those of his claims for relief on which he succeeded as compared with those on which he failed was modest."

That shows that the judge did take the criticisms into account. Accordingly, he did not err in principle. Nor can it be said that his decision was plainly wrong. After some initial hesitation, I would therefore affirm his decision on this question.

33. There is no similar difficulty in respect of the judge's order that Mr Watson is entitled to an indemnity out of the estate in respect of all his costs ordered to be paid by Mr Perotti. The principle here is clear. A trustee or personal representative is entitled to be indemnified out of the trust property or estate for all expenses which he has properly incurred in carrying out his functions as trustee or personal representative; see, for example, Re Spurling's Will Trusts [1966] 1 WLR 920. If an order for costs is made in his favour in contested litigation, it can only be, if at all, in exceptional cases that the trustee or personal representative is not entitled to be indemnified. Here the effect of the judge's decision is that Mr Watson acted properly in incurring three-quarters of the costs as between himself and Mr Perotti. If and to the extent that he cannot recover them against Mr Perotti, he is entitled to be indemnified out of the estate. I would therefore affirm the judge's decision on this question also.

Other points on the appeal in the main action

34. The next point taken by Mr Perotti was in relation to an undated letter received by Mr Watson on 25th June 1986 from the deceased's brother Fiorenzo. That letter stated that Fiorenzo wished "to recognise the last wishes of my brother, Lorenzo Perotti, concerning the movable property under the English will". That could have been a reference to a letter of wishes signed by the deceased. However, without going into detail, it is enough to say that it is unclear what Fiorenzo meant. The judge said (at p. 25D) that the effect of his letter was "somewhat unclear". He pointed out that its effect could not properly be determined in proceedings to which the numerous persons who were named in the deceased's letter of wishes were not parties. In that the judge was clearly right. Mr Perotti asked us to make a declaration as to the effect of Fiorenzo's letter and a disclaimer. However, not for the first time, we had to point out to him that, as an appellate court, we have no power to decide a question which has not been decided below. The only decision made by the judge was that he could not consider the effect of Fiorenzo's letter and disclaimer. At the most, we could have done no more than remit the matter to him with a direction that he should determine it. In the circumstances stated by the judge, it would have been quite inappropriate for us to do so.
35. Mr Perotti took a second point of a similar nature. He asked us to make an order for the repayment by Mr Watson of any shortfall resulting from what he claimed was the unlawful or improper distribution of £100,000 to ten persons in January 1991. It was that which has become known as the alternative distribution. The point was dealt with by the judge at pp. 116-117 of the transcript. As he pointed out, there was no reason why the estate should not be distributed in that way if all the residuary beneficiaries under the deceased's will (all of whom were of full age and capacity) had consented to that course. The question was whether the necessary consents had been given or not. Again the judge decided, again correctly, that that was not a question he could deal with in the present proceedings. The same objections prevent its being dealt with by this court.
36. Mr Perotti took a third point of a similar nature in relation to capital transfer tax of £22,000 payable on a house devised to the deceased's sister, Mrs Salvi, by his will. Again the judge decided, again correctly, that he could not deal with that question until the true entitlements to share in the estate had been resolved. The same objections prevent its being dealt with by this court.
37. In the court below Mr Perotti sought leave to amend in order to raise a fresh claim against Mr Impanni, who, as I have said, did not appear and was not represented either before the judge or in this court. It appears that, initially, Mr Perotti was allowed to make the amendment. However, later in the trial Mr Semken informed the judge that he had read the amendment as referring to Mr Watson and not Mr Impanni. The judge, having said that he also had read it in that way, withdrew leave to make the amendment. In my view he was perfectly entitled effectively to disallow a late amendment against a party who was neither present nor represented and who had no notice of the application to amend. The judge's decision cannot be overruled by this court.
38. Mr Perotti complained about a payment of £4,524 made by Mr Watson to Littlejohn Frazer, a firm of accountants, for the preparation of accounts which he says were unnecessary. Since it appeared that there might have been something in this point we called on Mr Davidson to respond to it. The judge dealt with it at p. 120E to G of the transcript. He said that Mr Perotti's complaints under this head were wholly generalised and that he had not identified to his satisfaction particular items of work for which Crouch (another firm of accountants) had been retained as being work for which they should not have been retained. The fact that the judge referred to the wrong firm of accountants may confirm how vague the complaints were. In any event, having gone into the matter afresh and looked at the relevant documents, I agree with Mr Davidson that it was a perfectly sensible and proper course for Mr Watson to ask Littlejohn Frazer to draw up accounts at the stage that he did. This complaint fails.
39. Mr Perotti also complained about a settlement arrived at between Mr Watson and the Inland Revenue in relation to the estate's liability for back tax, interest and penalties, which, once it was admitted that the deceased had died domiciled in England, were admittedly payable in respect of his undeclared income from funds in Switzerland. That matter was fully dealt with by the judge at pp. 104F to 114F. Mr Watson settled the Revenue's claim at £290,000. Mr Perotti claimed that he was negligent in settling it at so high a figure. Having considered the question with great care the judge said at p. 114F:

"Ultimately, whether or not to accept the [Inspector's] figure of £290,000 was a matter of judgment for Mr Watson. He exercised it by concluding that that was the right figure at which to settle. Others might have taken a different view. In my judgment, however, it was not negligent of Mr Watson to take the view he did. I reject Angelo's submission that it was."

Mr Perotti was unable to persuade me that this court could properly interfere with the judge's decision on this point. So this complaint also fails.

40. Mr Perotti claimed that the judge was wrong in holding that Mr Watson, if he had taken the necessary steps, could and would have achieved a remittance of the Italian loan to England by 1st January 1987. Mr Perotti argued that a remittance could and ought to have been achieved by 1st July 1985. This matter was dealt with by the judge between pp. 98B and 101D of the transcript. He held that Mr Watson was under a duty to get in the loan, that he was negligent in not getting it in by 1st January 1987 and that, in failing to do so, he was guilty of wilful default and liable for interest from that date. Again, Mr Perotti was unable to persuade me that the judge's decision on this point was unduly lenient to Mr Watson.
41. Mr Perotti's two final points on the appeal related to Mr Watson's counterclaim for administration and the gold coins which he claimed at the trial had been misappropriated by Mr and Mrs Abbate. Since the counterclaim was purely a longstop, there was nothing in the first of those points. As to the second, Mr Perotti took time to consider whether he wished to press the claim or not. He told us that his real complaint was against Mr Abbate, who he alleged had lied and knowingly misled the judge, not Mrs Abbate. We had to point out to Mr Perotti that, if he pressed the claim, it would be difficult, if not impossible, for him to press it against Mr Abbate and not Mrs Abbate. In the end he decided to abandon the claim and I say no more about it.
42. Having now considered and rejected all the points made by Mr Perotti in his oral submissions (being the only points which could be said to have had any merit in them), I would dismiss his appeal in the main action.

The other listed applications

43. On the fifth day, 21st November, we heard argument on the seven other listed applications. In deference to Mr Perotti's wishes, they were not taken in the order we had originally proposed. But since they all raised discrete issues that was not a matter of importance. Each of them was an application by Mr Perotti for permission to appeal against an order made in the Chancery Division on a date in 1999. On two of them we reserved judgment. In dismissing the other five, we said we would give our reasons when delivering our substantive judgments. I refer to each of the orders in turn.

(1) Order made by Mr Justice Rimer on 29th March 1999.

44. This order affirmed an order made by Master Moncaster on 25th February 1999. The orders were made in the second action, which was commenced by a writ issued on 23rd January 1998. At a previous hearing the judge had identified six areas of overlap between the second action and the main action. The effect of his order of 29th March 1999 was to confirm an earlier order made by Master Moncaster on 5th March 1998 staying the second action until after judgment on the appeal in the main action.
45. The purpose of Mr Perotti's application for permission to appeal against the order of 29th March 1999 was to have the stay of the second action lifted. But by the time he came to make it we had reserved judgment on the appeal in the main action and it could only be a matter of weeks or months before judgment on that appeal was delivered. So even if the stay was wrongly granted (which it clearly was not), there was no point in pressing the application at that stage. Mr Perotti's real concern is that Mr Watson will rely on the principle of Henderson v. Henderson (supra) in order to defeat the Nestle claim which, as I have said, has been squarely made in the second action. That point will have to be dealt with if and when it is formally raised by Mr Watson. It was not a reason for granting Mr Perotti permission to appeal against Mr Justice Rimer's order of 29th March 1999.

(2) World wide freezing order made against Mr Perotti by Mr Justice Rimer in the main action on 24th June 1999

46. The application for that order was supported by an affidavit of Miss Penrose Foss, of Mr Watson's solicitors, sworn on 18th June 1999. Mr Perotti asked us to grant an adjournment of this application, so that it could be heard at the same time as three other related applications which were not before us and which may or may not have yet been made. An adjournment was refused. Of the three grounds relied on by Mr Perotti as invalidating the freezing order, only one could be material, namely that it was procured by perjured or misleading evidence given by Miss Foss. Before Mr Justice Rimer Mr Perotti applied for leave to cross-examine her on her affidavit, but, for the reasons fully given between pp. 4B and 13C of the first of the judgments delivered by the judge on 24th June 1999, he refused that application. Those reasons are compelling and it would have been impossible for this court to interfere with the judge's exercise of his discretion in refusing to allow the cross-examination. On that footing, the granting of the freezing order was well within his discretion and unimpeachable in this court.

(3) Order made by Mr Justice Neuberger, sitting with assessors, on 1st July 1999 on a review of a taxation of costs in the main action.

47. The history of this matter is that four bills of costs were taxed by Taxing Officer Lambert on 17th June 1998. On the application of Mr Perotti his decision was reviewed on 6th January 1999 by Costs Judge Campbell. Mr Perotti then applied for a further review by the judge and the assessors. On an appeal to this court against the further review Mr Perotti is not entitled to a third review. He must show that Mr Justice Neuberger erred in principle.
48. Although Mr Perotti's notice of application went wider, he pressed only two points. First, he complained about being ordered to pay the costs of a transcript of a judgment delivered by Mr Justice Rimer on 30th October 1997 on an unsuccessful application by Mr Perotti for a wasted costs order against Miss Foss. Although Mr Justice Neuberger said that the point had caused him difficulty, there was really nothing in it. Even though there was to be no further appeal, it was perfectly reasonable for Miss Foss to be supplied with a copy of a judgment absolving her from serious allegations. There was no error of principle in the decision of Mr Justice Neuberger.
49. Mr Perotti's second point was that he was ordered to pay for the costs of privileged documents which he was necessarily unable to see. He relied on Goldman v. Hesper [1988] 1 WLR 1238. At the hearing before Mr Justice Neuberger and the assessors Mr Semken stated that there was only one privileged document, namely an opinion of his own, which was assessed for the time involved. The opinion was looked at by the costs judge and it would have been unreasonable for Mr Perotti to have seen it when the litigation had not been concluded. It cannot be said that there was any error of principle in the affirmation of the decision of the costs judge.

(4) and (5) Orders made by Mr Justice Rimer on 29th March 1999 and by Mr Justice Jonathan Parker on 15th December 1999.

50. The first of these orders was made in the detailed assessment of the costs of the main action. By the second of them Mr Justice Jonathan Parker, having refused Mr Perotti an adjournment, dealt with other questions of costs in the main action. Both these applications were opened by Mr Perotti and were responded to on Mr Watson's behalf by Mr Semken. Mr Perotti then replied. At the end of the argument we reserved judgment on both applications.
51. I propose to deal with the first of these applications briefly. The matter is explained in the transcript of the proceedings before Mr Justice Rimer on 29th March 1999; see pp. 24-34. Mr Perotti's case was that Mr Watson had thrown in the towel. But I agree with Mr Semken that, on analysis, the only thing on which he had thrown in the towel was the speed with which the taxation should be pursued. What Mr Perotti was asking for was for the order of Costs Judge Campbell made on 17th July 1998 to be specifically set aside. Before us he asked, rhetorically, "If I cannot have an order which says I have won when I have won, what can I have?" While I can understand Mr Perotti's feelings, they are not an adequate basis for this court to interfere with a decision made by the judge in the exercise of his discretion. The form of the order was a matter for him. I would dismiss this application.
52. As to the second of these applications, the history is as follows. On 20th August 1999 Costs Judge Campbell granted an interim costs certificate against Mr Perotti in regard to the costs of the main action in the sum of £187,382. Mr Perotti applied to the judge for permission to appeal against that certificate. The application was fixed to be heard by Mr Justice Laddie on 15th December 1999. On 7th December Mr Watson's solicitors sent Mr Perotti Mr Semken's skeleton argument and chronology for the hearing, together with the authorities referred to therein and two lever arch files containing the documents relied on. On 15th December, Mr Justice Laddie being indisposed, the application came on before Mr Justice Jonathan Parker. There were also before him an application by Mr Perotti for a variation of the freezing order (see (2) above) and an application by Mr Watson to which reference is unnecessary.
53. Mr Perotti (who had not attended or been represented before the costs judge) did not attend and was not represented at the hearing on 15th December. The judge had before him a faxed letter dated 10th December written by solicitors on Mr Perotti's behalf. He proceeded on the footing that Mr Perotti did not wish to withdraw the appeal and he treated him as having made an application for an adjournment. The judge decided that an adjournment was inappropriate. However, he did not strike out Mr Perotti's two applications but proceeded to consider them on the merits. Having done so, he expressed the view, first, that there was no real prospect of Mr Watson's costs being either disallowed or taxed down so as to reduce his entitlement below £187,382 and, secondly, that there was no possible basis for varying the freezing order. He therefore dismissed both applications.
54. Mr Perotti now asks us to discharge the judge's order and to direct that his two applications be listed to be reheard before Mr Justice Laddie. He says that Mr Justice Jonathan Parker was wrong not to have granted an adjournment so that he could be legally represented. He says that it ought in any event to have been heard by Mr Justice Laddie and, further, that in regard to the application to vary the freezing order Mr Semken in some way failed in his duty to inform the court of matters of which he ought to have informed it.
55. This application also fails. When we asked Mr Perotti why he did not appear before Mr Justice Jonathan Parker he said that it was because he had never been successful as a litigant in person. That was a decision he was entitled to make. But it does not entitle him to say that any of the judge's rulings was invalid because he did not consider points which might have been, but were not, put before him. Further, the fact that the hearing was fixed before Mr Justice Laddie did not give Mr Perotti a right to have his applications determined by that or any other named judge. Finally, as Mr Semken pointed out, Mr Perotti's objections are entirely procedural. He has not addressed the merits of either of the judge's decisions. Again, they were well within his discretion and cannot be interfered with by this court. I would dismiss this application also.

(6) Order made by Mr Justice Laddie on 26th July 1999.

56. By this order the judge dismissed an application by Mr Perotti in the main action to commit Miss Foss to prison for alleged perjury, misleading the court and contempt of court and, further, to impose financial penalties or disciplinary measures against Mr Semken. The judge's reasons for dismissing the application are fully set out between pp. 1 and 16 of the transcript of his judgment. He concluded by saying that the whole of the application was without justification, and that it was a quite improper attempt to harass the lawyers acting for Mr Watson. He went on to make a Grepe v. Loam order against Mr Perotti in the main action.
57. Mr Perotti told us that he did not wish to withdraw this application. Indeed he pressed it. However, he did not advance oral submissions in support of it, relying only on the written material before the court. That material has not persuaded me that there is any ground on which the application could succeed. It consists of no more than assertions against Miss Foss and Mr Semken. One of the grounds relied on is that the judge was wrong in refusing to allow Mr Perotti to cross-examine Miss Foss on her affidavits. In large part that was a renewal of the complaint made in regard to Mr Justice Rimer's decision of 24th June 1999 (see (2) above). Nothing has been shown to invalidate Mr Justice Laddie's view that the application was without justification and an improper attempt to harass the lawyers acting for Mr Watson. I should add that Mr Perotti did not seek permission to appeal against Mr Justice Laddie's Grepe v. Loam order in the main action.

(7) Grepe v. Loam order made by Mr Justice Rimer in the second action on 29th March 1999.

58. The background to this application is that on 15th June 1998, when Mr Justice Rimer heard and dismissed Mr Perotti's appeal against Master Moncaster's order of 5th March 1998 staying the second action (see (1) above), he refused to make a Grepe v. Loan order. He did so partly in reliance on Mr Perotti's assurance that he did not intend to apply to lift the stay. But he warned Mr Perotti that there was a serious risk that such an order would be made if he made further irresponsible applications in the second action. (An earlier Grepe v. Loam order had by that time been made in the main action on 28th November 1997, against which this court had refused permission to appeal on 6th April 1998.)
59. What then happened was that Mr Perotti did make a further application in the second action without first applying to lift the stay. He sought an order "that there be no strike out of this action on the grounds of res judicata (i.e. that the claims herein ought to have been brought in the main action . . . .)". That application was dismissed by Master Moncaster and an appeal against his order was dismissed by Mr Justice Rimer on 29th March 1999, at the same time as he made the Grepe v. Loam order now objected to. That hearing was not attended by Mr Perotti.
60. In the light of that background, it is incontrovertible that it was well within Mr Justice Rimer's discretion to make a Grepe v. Loam order in the second action. He took account, as he was entitled to do, of Mr Perotti's conduct which had led to the making of a similar order in the main action. He also had regard, again correctly, to the heavy costs incurred in the litigation. Again, it would have been impossible for this court to interfere with the judge's exercise of his discretion.

Unlisted matters

61. At the end of the fifth day we ruled that Mr Perotti was no longer allowed to question the validity of the order made by Mr Justice Robert Walker on 4th October 1996 (see under "Further Preliminary Applications" above). All other objections apart, I repeat that his withdrawal of his application for permission to appeal against that order, as recorded in the order of this court made on 2nd February 2000, was an end to that application. It was also an absolute bar to his reopening of the order of 4th October 1996.
62. Mr Perotti also tried to get us to intervene in an action between Mr Watson and Mr Perotti's daughter, in which an application for permission to appeal has been listed to be heard on 2nd February 2001. Mr Perotti maintained that that application ought to be adjourned. We had to tell him that neither that action nor any application in it could be dealt with by us.

Conclusion

63. In addition to dismissing Mr Perotti's appeal in the main action I would dismiss all his applications, whether listed or unlisted, in both the main action and the second action.

LORD JUSTICE KAY:

64. I agree.

LORD JUSTICE WALLER:

65. I also agree.

Order: Leave to appeal refused with costs summarily assessed in the sum of £100,000.

Payment in court to be kept by respondent.

(This order does not form part of approved judgment)