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
(Mr Justice Ferris)

		Royal Courts of Justice Strand London WC2 Tuesday 13th November, 2001

1. LORD JUSTICE CHADWICK: This is a renewed application for permission to appeal from an order made on 16 July 2001 by Ferris J in probate proceedings relating to the estate of Mrs Vera Webb Strong, who died on 27 March 1997. She had made a will on the previous day, 26 March 1997. The claimants in those proceedings are the deceased's brother, Mr Raymond Ward, and his son, Mr David Ward. The defendant, and the present applicant in this court, is the deceased's other brother, Mr Anthony Ward. He is the executor named in her will and the residuary beneficiary under that will.
2. The applicant obtained probate of the 1997 will in common form on 16 October 1997. These proceedings, in which the claimants asked the Court to pronounce against that will and in favour of an earlier will dated 13 July 1993, were commenced on 4 January 1999. After a number of amendments to the particulars of claim, the remaining issues were lack of due execution and lack of knowledge and approval. The trial of those issues was fixed for hearing on 30 April 2001 with a time estimate of three days. The trial was listed before Jacob J.
3. In the week before the trial, negotiations took place between Mr David Ward - who is himself a solicitor and was acting as such for the claimants - and Mr O'Halloran, a solicitor then with the firm Alexanders, who was instructed on behalf of the applicant. The result of those negotiations was that an agreement was reached between the lawyers as to the terms upon which the proceedings could be compromised. By 26 April 2000, a Thursday, the terms had become embodied in a draft minute of order agreed between the parties' respective counsel. A copy of that draft was sent by fax to Mr O'Halloran; and copied by Mr O'Halloran to his client, the applicant. Mr O'Halloran took the view that he had the authority of his client to agree the terms with Mr David Ward; and the Listing Office was accordingly informed that the matter would be mentioned to the judge on Monday 30 April for an agreed order.
4. On the morning of 27 April, a Friday, the applicant informed Mr O'Halloran that he did not wish to proceed on the basis of the terms in the draft minute of order. Mr O'Halloran took the view that the action had been settled by agreement on the previous evening; and that if his client was not prepared to proceed, the only course open to him, Mr O'Halloran, was to take his firm's name off the record. He prepared a notice of intention to act in person which, as he said, was signed by the applicant and which was lodged with the court on 27 April.
5. The matter came before Jacob J on 30 April 2001. The claimants invited Jacob J to make an order in the terms of the minute which had been agreed between counsel; on the grounds that there was a binding compromise. Jacob J took the view, understandably if I may say so, that the appropriate course in the circumstances was to direct that there be a trial of the issue whether or not a binding compromise of the claim in the proceedings had been concluded between the parties on the previous Thursday. It was that issue which came before Ferris J on 16 July 2001.
6. Ferris J heard evidence as to the events of 26 and 27 April 2001. In particular, he heard evidence from Mr O'Halloran and from the applicant on the question whether the applicant had signed or countersigned a copy of the draft minute of order and an earlier letter dated 25 April setting out the terms upon which that draft minute of order was based. Mr O'Halloran's evidence, given on the basis that the applicant was content to waive privilege, was that both those documents and the notice of intention to proceed in person had been signed by the applicant in his presence. The applicant maintained that he had signed none of those documents - in particular, that he had not signed the minute of order setting out the agreed terms. The judge preferred the evidence of Mr O'Halloran to that of the applicant. The judge said this (I read from page 5 line 30 of his judgment to page 6 line 10):

"I think I must proceed by evaluating what I am told about these documents. Mr Anthony Ward is adamant that he did not sign either of them; Mr O'Halloran said that he signed both of them in his, that is Mr O'Halloran's, presence. In relation to the signature of the minute of order Mr O'Halloran was able to give certain circumstantial detail about his memory of precisely where the document was signed by Mr Anthony Ward. It appeared to me that Mr O'Halloran was, as one would expect of a solicitor, an entirely honest witness, and I have no reason whatever to doubt his evidence. Mr Anthony Ward did not give me any confidence that I could rely upon his evidence, and I have no hesitation in preferring what Mr O'Halloran told me about the signing of the documents to Mr Anthony Ward's insistence that he did not sign. Moreover, this is clearly a case in which all the legal representatives of both parties considered by the end of 26th April that a binding compromise had been agreed. Mr O'Halloran's evidence agreed entirely with that of Mr David Ward.

I would therefore uphold the argument that a settlement was arrived at with the express concurrence of Mr Anthony Ward."

7. On the basis of that finding of fact the judge reached the conclusion that the settlement was binding on the applicant. That is a finding against which there is no realistic prospect of a successful appeal. The point turned directly on the conflicting evidence of the only two parties with actual knowledge of the facts; that is to say, on the conflicting evidence of Mr O'Halloran and the applicant, who were the only persons who knew whether or not the applicant had signed the documents. The judge evaluated that evidence with the advantage of seeing and hearing the witnesses before him. An appeal court would not have that advantage. No basis has been shown upon which an appellate court could interfere with the judge's conclusion of fact.
8. Mr Ward, who has appeared in person this morning, has referred me to the decision of Watkins J in Marsden v Marsden [1972] 2 All ER 1162. The Marsden case turned on the question whether an agreement made between counsel was binding on parties to divorce proceedings. The evidence before the judge in that case was that the wife had given express instructions that a class F land charge on the matrimonial home was not to be released and that her interest, or claimed interest, in the matrimonial home was not to be abandoned. Further, she had given express instructions that there was not to be an agreement with the husband relating to maintenance. The limitation of the authority which she had given was not known to the husband's advisers; but, as the judge found, was known to her counsel. In those circumstances, the Court set aside the compromise made between counsel on the basis that it was made contrary to the express instructions of one of the clients; and that grave injustice would be done by allowing the compromise to stand.
9. That is not this case. On the facts found by the judge in this case, the compromise which the claimants sought to enforce was a compromise which was made on the express instructions of Mr Anthony Ward; such instructions being evidenced by his signature to the document containing the terms.
10. Mr Ward maintains, forcefully, that he never signed that document. He has made it clear that that is the position which he will hold, regardless of what any Court may decide. It follows that nothing that I may say is likely to alter Mr Ward's view that he did not sign these documents. It is sufficient, therefore, to note that he had the opportunity to put before Ferris J whatever evidence he wished to support his contention; including, if it could be obtained, evidence from a handwriting expert that the signatures were not his signatures. He did not put that material before Ferris J; and, indeed, to this day there is nothing except his own testimony to support his assertion that he did not sign the relevant documents. The judge disbelieved him and held that he did. As I have said, I can see no basis upon which an appellate court could come to a different conclusion.
11. The judge went on to consider whether there was anything in paragraph 12.2 of the Practice Direction (Contentious Probate Proceedings) issued under CPR 49 which precluded the Court in probate proceedings from giving effect to the compromise agreement which, as he found, the parties had reached. The judge concluded that there was not any reason to refuse to give effect to that agreement. It is important to have in mind that this is not a case in which, under the terms of the compromise, the Court is asked to pronounce for or against a will. The terms of the compromise leave probate of the 1997 will undisturbed; but require adjustments to the distribution of assets under that will. There is no prospect that a challenge to the judge's conclusion under paragraph 12.2 of the Practice Direction could be successful.
12. I should add this. At the end of last week Mr Ward sought an adjournment of this application so that he could seek, and if possible obtain, representation from the Bar Pro Bono Unit. That application was refused on paper; but on the basis that it could be renewed at the hearing today if supported by a letter from the Bar Pro Bono Unit setting out the dates upon which the applicant had responded to requests for information from that Unit; the reason why no decision had then been made to provide or withhold representation; and the date by which it was anticipated that such a decision would be made.
13. Events have overtaken a further application for an adjournment; in that Mr Ward has now received from the Bar Pro Bono Unit a letter, which he has put before me today, informing him that the Unit is unable to provide the assistance which he requested. In those circumstances, no further application for an adjournment was made at the hearing this morning.
14. For the reasons which I have given, this application for permission to appeal must be refused.