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 THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
CARDIFF DISTRICT REGISTRY
(His Honour Judge Moseley QC
(sitting as a deputy High Court judge))

		Royal Courts of Justice Strand London WC2 Thursday 18th October, 2001

1. LORD JUSTICE CHADWICK: This is an application for permission to appeal against an order made on 1 March 2001 by His Honour Judge Moseley QC, sitting as a judge of the High Court in the Chancery Division at Cardiff. The order was made in probate proceedings brought by Neil Aston Richards and David Geoffrey Lewis, partners in a firm of solicitors, Richards & Lewis; and, as such, persons named as executors in a document executed as a will by Mrs Kathleen Elizabeth Morgan on 22 June 1994. The claimants sought admission of that document to probate in solemn form. The defendant to those proceedings was Mr Anthony Ernest Briant Morgan, the eldest son of Mrs Kathleen Morgan. Mr Anthony Morgan who is the applicant now before me. He has appeared in person.
2. Mrs Kathleen Morgan died on 23 February 1999. Mr Anthony Morgan had lodged a caveat against probate on 22 September 1999 in the Leeds District Probate Registry; and, on being required to enter appearance to a warning off, had done so on the ground that the document of 22 June 1994 was not a valid will by reason of his mother's lack of testamentary capacity. It was in those circumstances that these proceedings were commenced on 17 November 2000.
3. On 8 January 2001 the claimants applied for an order for trial on written evidence only. The grounds stated in support of that application were these:

"1. In this matter, proceedings were issued on 17th November 2000 and subsequently the particulars of claim, affidavit of testamentary descripts (sic) and response pack were deemed served on the defendant on the 14th December.

2. A certificate of service confirming service of the documents was served to the court on the 20th December 2000.

3. The defendant has failed to respond to the claim form served upon him on the 14th December and in default, the learned District Judge is respectfully asked to make an order that the probate claim be tried, that the trial of the probate claim be heard on written evidence only and that there be such further directions as appropriate in the circumstances."

4. An order for trial on written evidence was made on 2 February 2000. The order directed that:

"... the claimants submit their evidence in writing by 4.00pm on 16 February 2001 together with a draft of the order they seek."

5. The order made no provision, on its face, for evidence to be submitted by the defendant.
6. In response to that order, Mr Richards swore an affidavit on 14 February 2001 setting out the circumstances in which instructions were given and the will was executed. In paragraphs 7 and 9 of that affidavit he deposed:

"There was no doubt in my mind whatsoever that Mrs Morgan was in full possession of her faculties and had full testamentary capacity when she gave me her instructions and when she subsequently executed her last Will on the 22nd June 1994. The Will was executed in my Office at 19 Market Street and was witnessed by a Clerk, Nicola Hawkins and my secretary, Jane Seaward."

7. He went on, at paragraph 9:

"I had no doubt when I took instructions from Mrs Morgan and when she executed the Will that she was fit and well and fully able to make rational decisions. Mrs Morgan explained to me fully her reasons and justifications for wanting to omit Anthony Morgan from her Will and I respectively say that I believe that the allegation she was not fit to make that Will has no substance."

8. Also lodged was an affidavit of due execution from Mrs Seaward, one of the attesting witnesses.
9. There is included in the bundle of papers provided on this application a witness statement of Mr Anthony Morgan, signed on 14 February 2001, with exhibits; and witness statements signed by his former wife, Mrs Ann Morgan, and his present wife, Mrs Elaine Morgan, also dated 14 February 2001. There is an unsigned document which appears to be the draft of a witness statement to be made by a Dr Lewis, a physician who was treating Mrs Kathleen Morgan at the time. It appears from that document that, by mid-1994, Mrs Morgan's Alzheimer's disease was established, but it was possible that the solicitors dealing with it may not have noticed it, as it was not severe at that time. This unsigned statement suggests that it is Dr Lewis' view that Mrs Morgan may or may not have been in a position to make a will in June 1994; but that she had sufficient capacity at that time to express her wishes as to her estate, even if she was not aware as to all the details of that estate. As I said, that statement has not been signed. I do not know whether Dr Lewis would sign it in the form of the draft.
10. On 1 March 2001, upon reading the affidavits of Mr Richards and Mrs Seaward - but without having heard any oral evidence or, so far as appears from the order, without having read the witness statements of 14 February 2001 which Mr Morgan tells me he had lodged with the Court, and without hearing any submissions from the parties, none of whom seem to have been present - the judge made an order that the will of 22 June 1994 be admitted to probate in solemn form. He also directed that the costs of the proceedings be paid by Mr Anthony Morgan.
11. It is not difficult to speculate that the judge made the order that he did because he accepted the uncontradicted, or apparently uncontradicted, evidence in the affidavit of Mr Richards that he, Mr Richards, was satisfied that his client, Mrs Morgan, was of sound mind and testamentary capacity. I say "uncontradicted evidence" because, unless the judge had before him the witness statements of Mr Anthony Morgan, Mrs Ann Morgan and Mrs Elaine Morgan, Mr Richards' evidence was, indeed, uncontradicted. But, unfortunately, the judge did not appear to have thought it necessary to give any reasons for the order which he made. There is no record of any judgment - not even a short judgment - confirming that the judge was adopting Mr Richards' view on the crucial issue of testamentary capacity; or stating that he was rejected the evidence, if indeed it were before him at all, of Mr Anthony Morgan and his witnesses. He makes no comment on anything that was or might have been said by Dr Lewis.
12. As I have said, it may seem obvious that what happened was that the judge proceeded on the basis of the claimants' affidavits; but, in the absence of any record of judicial reasoning, the apparently obvious is, in truth, no more than a speculation.
13. It is important to have in mind that contentious probate proceedings are specialist proceedings within Part 49 of the Civil Procedure Rules. A default judgment cannot be obtained in a contentious probate claim: see paragraphs 6.1 and 10.1 of the practice direction which supplements Part 49 of the CPR and which is to be found in Volume 2 of Civil Procedure at Part 2G. Application for a summary judgment in contentious probate proceedings must be made under CPR 23. CPR 23.8 requires that there be a hearing of the application unless the parties agree that the matter can be disposed of without a hearing; or the Court does not consider that a hearing would be appropriate. The practice in relation to the admission of a will to probate in solemn form reflects the historic antecedents of the probate jurisdiction of the High Court. The Court has an investigatory role in these cases and orders are not made by default.
14. There is no indication in the papers before me that the parties did agree that the matter could be disposed of without a hearing; nor that the Court reached a conclusion in the absence of agreement that a hearing would not be appropriate. The material which I have seen suggests that there was no hearing on 1 March 2001 - at least, no hearing at which Mr Anthony Morgan was present. It also suggests that, whatever happened on 1 March 2001, the judge did not have before him the witness statements which Mr Anthony Morgan had lodged. At the least, there is no judgment which addresses those matters, so that this Court can see what the position was.
15. In those circumstances, my provisional view is that this is a matter in which the Court of Appeal would be persuaded on an appeal, if permission to appeal were granted, that the case ought to be remitted back to the judge; so that he can consider the material which is in the bundle which has been put before me or explain in a judgment why he has rejected Mr Anthony Morgan's evidence. I do not reach that conclusion on the basis that this is further evidence which the Court of Appeal would think it right to admit. I reach that provisional view on the basis that Mr Morgan tells me that that material was lodged with the Court; and the dates which the witness statements bear are at least consistent with that possibility.
16. In the circumstances, the order which I propose to make is to adjourn this application for permission to appeal to come on with notice to the claimants, Mr Richards and Mr Lewis, and with a direction that, if permission is granted, the appeal will be heard immediately thereafter. I make that direction because it seems to me that, if permission is granted, it will be because this is a case which ought to go back to the judge and there is no purpose in having a separate hearing to decide that question at a later date.
17. If on consideration of this ruling - of which Mr Anthony Morgan would be well advised to obtain and send a transcript to Mr Richards and Mr Lewis - the parties reach the conclusion that time and expense will be saved by a consent order that the matter be remitted to the Cardiff County Court, then they may write to the Civil Appeals Office to that effect; and so save the need to come to this Court in London for another hearing. If, however, they wish to address arguments to this Court - as they are entitled to do - then they will have that opportunity at that further hearing.
18. The further hearing is to be listed before a two-judge Court, with an estimated time of one hour.
ORDER: Application for permission to appeal adjourned to an on notice hearing before a two-judge court with a time estimate of one hour; appeal to follow if permission granted. (Order not part of approved judgment)