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
(MR JUSTICE JOHNSON)

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

Tuesday, 13th March 2001

1. LORD JUSTICE THORPE: This is a renewed application for permission to appeal following a refusal on paper by Ward LJ in July 1997. The claimant seeks provision from the estate of Lionel Bradley who was born in 1910 and died at the age of 83 in 1993. When he was approximately 53 years of age, the claimant became his mistress. Their relationship endured in one form or another until the death of the deceased.
2. It is unnecessary to record the facts in any great detail. Sufficient to say that despite this continuing relationship, the claimant married in 1996 and gave birth to a son, Edward, in 1978. It seems that her husband accepted the continuing relationship between the claimant and Mr Bradley. The claimant has asserted that Edward is in fact not the son of her first husband but the son of Mr Bradley. There seems to be little doubt that during these years the deceased was very generous to the claimant, the highlight being the provision of about £40,000 in 1980 to enable her to purchase a property.
3. When her first marriage failed, the claimant subsequently, in 1987, married a Mr Cole. By this stage the deceased was about 77 years of age and the sexual relationship between him and the claimant ceased. However, a strong bond seemingly endured, and he not only gave a generous wedding present to the claimant and Mr Cole but also thereafter, according to the claimant's case, regularly gave money to Mr Cole for the benefit of the family. Mr Bradley, according to the claimant, maintained a veil of secrecy over his relationship with her and accordingly it is perhaps not surprising that there was no mention of the claimant either in his will of March 1989 or the codicil of August 1992. The deceased declined in health from the autumn of 1992, and indeed was in hospital quite a bit in the early months of 1993, prior to his decease on 3rd June.
4. In the proceedings there was a good deal of dispute as to the state of the relationship between them through the last nine months of his life and also as to the extent of his financial generosity to the claimant in that last phase of his life. There was a certain amount of surviving correspondence, and in due course the judge placed a good deal of emphasis on that surviving record.
5. Following the death of the deceased his testamentary provision, which was the classic provision to the widow and then in due course to his three children, was the subject of a grant of probate, prior to the issue of these proceedings brought under the Inheritance (Provision for Family and Dependants) Act 1965, on 11th April 1994. The defendants' application to strike out came on 3rd April 1996, and led to a hearing before Johnson J in the Family Division on 26th February 1997.
6. There had been some delay and inconsistency in the interlocutory progress of the claim. By 26th February Johnson J was quite familiar with the case. He had to consider a number of affidavits made by the claimant as well as the contemporary correspondence, to which I have referred, and some evidence from a small builders' firm that shortly before his death the deceased had visited the claimant's home in Dorking and in the presence of the builders had authorised the execution of repair work to an estimated cost of about £7,000. The application to strike out was advanced on a number of bases, principally that there was no sufficient evidence of any continuing payments by way of maintenance to the claimant particularly in the latter stages of their relationship, and the broad submission to the judge was that this was a hopeless claim, both on the facts and the law, and that it should be brought to summary conclusion.
7. For the claimant it was said that any inconsistencies in the affidavit evidence or any contradiction between the affidavit evidence and the correspondence should be tested at trial, and that if there was only sparse payments in cash or kind during the final stages of relationship, at least there was the evidence of the deceased's promise to finance the repairs to the claimant's home in the weeks prior to his demise.
8. Johnson J delivered a brief judgment, and it is to be emphasised that it was an ex tempore judgment, in which he held, and this is perhaps the very essence of his judgment:

"The inference from what the plaintiff asserted in her affidavit evidence, coupled with the letters written by her, would seem to me to be that the relationship between the plaintiff and Mr Bradley had now reached, to say the least, a very low ebb and that she had in the ordinary layman's sense of the word long since ceased to be maintained by him."

9. The application for permission was put before Ward LJ who, in refusing, explained clearly his reasons for so doing. The application to renew was made within seven days of the sealing of his order and in ordinary course would have been disposed of early in the following Michaelmass term. But – and this is a very significant but – that renewed application was not listed before the Court until 3rd October 2000.
10. A delay as substantial as that requires both investigation and explanation. The only information before the Court today comes from a chronology helpfully prepared, I think, by Mr Sharples on the claimant's behalf. It shows that shortly after the filing of the application for an oral hearing the claimant applied for Legal Aid. That application was swiftly refused and that refusal came before the first provisional listing on 21st October 1997. The claimant's solicitors requested an adjournment pending the outcome of their appeal against the refusal of Legal Aid. Conventionally, that application was granted, the Court intending a relisting in November. However, it was then said on the claimant's behalf that her Legal Aid appeal would not be heard until shortly before Christmas, and the matter was adjourned again. It seems that the claimant suffered some sort of injury which frustrated the fixture of her appeal in December. Thereafter there were a series of adjournments over an extraordinarily extended period, the issue only being resolved in her favour on 20th June 2000. That decision was notified to the Court who on 10th July fixed the hearing for the 3rd October.
11. There is no affidavit explaining this long history of delay. Mr Sharples says there are medical certificates in existence but we have not seen them. He says that the shortcomings in the evidence and the explanation for delay lie in the fact that there had been at least one change of solicitors and that those who now instruct him have been unable to obtain the file from their predecessors. But what is of significance in my opinion is that none of these developments were communicated to the respondents so that, from their perspective, service of the order of 3rd October 2000, fixing an oral hearing on notice, came as a bolt from the blue, they having heard nothing in the interim since receiving a copy of the order of Ward LJ of 22nd July 1997 refusing permission to appeal.
12. Under those circumstances it seems to me that it is incumbent upon Mr Sharples to demonstrate that Johnson J was clearly wrong to have reached the conclusion that he did as long ago as 26th February 1997. It has now been four years in which there has been effectively no progressive step in the proceedings. Mr Sharples complains that the judge did not apply a sufficiently high test in weighing and granting the respondent's application. The judge simply said:

"The question that I have to decide is whether there is a triable issue and whether the facts alleged by the plaintiff are sufficient to justify the case proceeding further."

13. Mr Sharples contrasts that with the definition of the test in the reported case of Lonrho v Fayed (No 2) [1991] 4 All ER 961 at 965, where it was said by Millett J:

"A plaintiff is entitled to pursue a claim in these Courts however implausible and however improbable his chances of success. Unless the Defendant can demonstrate shortly and conclusively that the plaintiff's claim is bound to fail or is otherwise an abuse of process of the court, it must be allowed to proceed to trial."

14. He also complains that the judge in summarising the plaintiff's case unfairly characterised it as little more than the receipt of treats, "little treats", over the years from the deceased, and he says that had there been a full trial the claimant would have had the opportunity of establishing the substance and the consistency of the financial support which she received. He also complains that the judge unfairly put out of consideration the evidence in relation to the repairs to the claimant's Dorking home when he said, and this is a single sentence at page 8 of his judgment:

"On the basis of that statement, Mr Bradley undertook an obligation but did not discharge it."

15. It seems to me that if taken individually there may be some force in the first and further criticisms advanced by Mr Sharples. But we have to look at this application in the round. Johnson J was expressing a vastly experienced assessment of the good sense of allowing the litigation to proceed. He very clearly expressed his conclusion on that point in the paragraph that I have already cited from page 6 of his judgment. In my opinion that assessment is a valid assessment and one with which this Court would not interfere were permission granted. If there were any doubt as to that, it is important that we should take a realistic view of the decision that the Court makes today, and give a fair reflection of the litigation history and the facts that it is now four years since the judgment in the Family Division, and, as far as the respondents are concerned, for three of those years they were in the confident state of belief that they were longer subjected to any sort of continuing litigation.
16. For all those reasons I would refuse the application
17. LORD JUSTICE BROOKE: I agree.
18. SIR MARTIN NOURSE: I also agree. The judge's conclusion stated at page 8E to F of the transcript was that, even accepting the evidence of the claimant and the two builders in regard to the work carried out to a value of some £7,000, the deceased was not thereby making a substantial contribution towards the reasonable needs of the claimant. The judge added that in no sense was the deceased maintaining the claimant.
19. The judge had to decide a question of fact and degree. On such a question the judge's view, although not binding on this Court, will not be lightly interfered with. For my part, on the evidence before the judge and making, as he did, every assumption favourable to the claimant, I would have come to the same conclusion. That in itself is a sufficient basis for the dismissal of this application, and I would dismiss it accordingly.
(Application dismissed; costs against claimant; Legal Aid assessment)