England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHESTER COUNTY COURT
(His Honour Judge Edwards QC)

		The Royal Courts of Justice The Strand London WC2A Friday 6 April 2001

Friday 6 April 2001

1. LORD JUSTICE MANCE: This is an application for permission to appeal in respect of a refusal by a County Court Judge to grant permission to appeal from a District Judge. It is also an application for permission to appeal against the costs, assessed at £280, which were awarded against the applicant by the County Court Judge.
2. As regards the application for permission to appeal in respect of the refusal by a County Court Judge to grant permission to appeal from the district judge, that application is as such inadmissible under section 54 of the Access to Justice Act 1999 and CPR Practice Direction 52-006 paragraph 4.8.
3. As regards the application for permission to appeal against the costs, the matter is in principle different but, for my part, I must say that if the first application fails I can see no conceivable basis for challenging the costs awarded or their amount. As I understand it, Mr French, who has appeared before me in person, does not suggest any. What he said was that if the substantive application was ultimately successful then it would emerge that the costs should not have been awarded against him. That is a different matter.
4. I will, however, since Mr French is here and has made certain submissions orally, supplementing the very full written submissions in the bundle, explain the matter in a little greater detail. I do so, in particular because of the volume of papers so far generated, in the hope that it may be of some use and in view of the strong feeling which Mr French evidently entertains about the whole subject.
5. The summons (at page 130 in the bundle) was issued by Mr French in the Birmingham District Probate Registry Offices on 16 July 1999, claiming orders that his brother and sister, as executors of his father's estate, exhibit on oath a true and perfect inventory of the estate. He supported the application by an affidavit, sworn on 21 June 1999, asserting that the estate's assets were much greater than the £163,860 that the executors had previously sworn to; that his father had paid up insurance monies and other investments, including an off-shore fund of "some description"; that Tudor Williams (who were and are solicitors used by the executors) had relevant information; and that inspection of his father's diaries would also reveal relevant information.
6. There was a hearing on 4 August 1999 before Deputy Probate Registrar Marsh, whose notes I have seen at page 67. Thereafter, and presumably as a result of this, the executors swore an affidavit dated 23 August 1999 (page 208) giving an account of the administration of the estate and saying that at that stage the only diaries belonging to the deceased which were available were those up to 1990 which had been handed to the court on 4 August 1999. It appears that subsequently further diaries from the 1990s were located and they were the subject of an order for disclosure made in early April 2000.
7. Either as a result of some order, or as a result of fresh County Court proceedings (which is not entirely clear) the forum then moved to the County Court in proceedings with the claim No NH901158. There was a defence entered by the executors on 10 November 1999.
8. On 3 April, after hearing Mr French in person and the executors' solicitor, District Judge O'Leary made an order recording that the executors were to disclose the further diaries that I mentioned, and also struck out Mr French's claim as disclosing no reasonable grounds for bringing the claim (page 127). On 7 August (and/or possibly 31 July) 2000 Mr French applied for orders reinstating the claim and for disclosure by Merrill Lynch International Bank Ltd (as he described it) of the business affairs of his late father. District Judge O'Leary on 29 August 2000 refused to make either order, and ordered that the claim remained struck out (page 19).
9. Mr French then completed a Notice of Appeal against District Judge O'Leary's order striking out the claim, as well as against a refusal of permission relating to Merrill Lynch; and also gave notice that further orders would be sought, particularly (1) against Tudor Williams to declare what business they transacted on his late father's behalf to see if it has any bearing on this case, particularly on the matter of falsified probate accounts, and (2) for removal of the executors on the grounds that they had deliberately falsified the accounts and not carried out the deceased's wishes (page 2).
10. The circuit judge, His Honour Judge Edwards QC, refused permission to appeal on paper and heard and refused a renewed oral application for such permission to appeal on 21 December 2000 (page 221). I have before me, and have read, the whole transcript (pages 213-224) – as well (I should add to avoid any possible misconception) all the papers in the bundle before me, many of which are, however, duplicates of each other.
11. The judge said this, at page 221 in the bundle:

"The application before me is for leave to appeal the order of District Judge O'Leary on the 29th August this year.

The applicant, Mr David Peter French, obviously feels strongly that he is entitled to more money from his late father's estate than he appears to be about to receive and feels that other siblings, who are [the judge said 'also executors' but two of them are the only executors] are conspiring against him to conceal assets so that he will be paid only his share of the apparent assets and they will fraudulently appropriate the rest.

I am sure that District Judge O'Leary must have taken into account the fact that that is a virtual impossibility when Mr Little is acting [that is a reference to the partner of Tudor Williams acting for the executors]. The executors have put the matters in his hands and cannot get away with a fraud of that kind, not whilst Mr Little lives and breathes."

12. At that point Mr French interrupted and said "Of course they can", and it is part of his submission in writing that the circuit judge was wrong to place so much reliance on his belief in the integrity of a solicitor. However, there is another side of the coin to that: that a circuit judge certainly cannot assume without proof that a solicitor is acting fraudulently, as appears to be alleged in this case.
13. The judge went on:

"The judge had struck out the case for none-attendance and was unwilling to reinstate it because it appeared to have so little merit in it. That is one of the matters to be taken into account when deciding whether to allow a case to be restored.

I have also read the file when refusing leave on paper and what I have heard today only reinforces my opinion that Mr French, in perfectly good faith of course, is one of many people who feel that they ought to have got more than they are getting and think that everybody is against them. But, the evidence to support this is virtually non-existent. There were some shares that were missed out of the initial estate accounts, because at that moment the professional executor, Mr Little, had not got his hands on them, but they are in the accounts now.

There is said to be money with Merrill Lynch, but Mr Little has thoroughly investigated that and there has been a worldwide check and there is no money. This just does not amount to a case that can stand up and I am afraid, Mr French, that I have come to the same view again. I cannot give leave to appeal in a case like that and I refuse leave to appeal. The District Judge's order must stand."

14. Permission to appeal was therefore refused.
15. By a Notice of Appeal, sealed 18 January 2001, Mr French now seeks permission to appeal to this court. As I have said, that is inadmissible in so far as he seeks to invite this Court to grant permission in a matter where the County Court Judge refused permission to appeal to him.
16. However, there is also no merit, in my judgment, in any aspect of the proposed appeal. I have heard Mr French's brief submissions supplementing his written material, as I have indicated. First, Mr French makes various complaints about matters of procedure, representation and the whole course of events before His Honour Judge Edwards QC, but since I have had the opportunity of looking at the whole file afresh and hearing Mr French, I do not think that these retain much, if any, relevance.
17. Secondly, it is his contention that an order ought to be made in respect of Merrill Lynch. The basis for that is an address (with phone number) of Merrill Lynch, put, perhaps unfamiliarly, as 153 New Bond Street, W1 with the name of a gentleman called Mr Andrews in the deceased's diaries (pages 23-26), and a letter (page 22) from Merrill Lynch saying that they could not provide information save to the executors or by court order. The letter proves nothing; the diary entries also prove nothing. Another name in the same diaries happens to be Rensburg (stockbrokers or investment managers) of Tithe Barn Street, with a Liverpool code and a telephone number 051 227 2030. Yet when the executors wrote to them, the answer, dated 27 November 1998 (page 58) from a Mr G Tym, giving the same phone number, though a different address, was:

"It is many years since I have actually dealt with your late father and I have no records as to what shareholdings he was retaining. I am certainly not holding anything in the office for him."

18. The executors also wrote on 11 July 1998 to Merrill Lynch at 33 Chester Street, SW1 saying:

"We understand that you have acted for Mr French in the past and would be grateful if you would let us know whether you are aware of any other shares which your records indicate may still be held by Mr French." (page 57)

19. Subsequent to that letter, the executors' affidavit dated 23 August 1999 was sworn, attesting that:

"No other estate of or belonging to the deceased has at any time since his death come into the hands or knowledge of these deponents."

20. There the matter must in my judgment rest, unless there is some basis for challenging that statement.
21. The implicit assertion by Mr French (at page 90 in the bundle) that, in effect, anyone dealing with Merrill Lynch at all must make a minimum deposit of £250,000 is unsupported and implausible. As the diary entry in relation to Rensburg indicates, the fact that a name appears in the deceased's 1990 diaries proves nothing about any contemporaneous dealings.
22. Mr French spoke before me of links between Merrill Lynch London and Merrill Lynch Pearce Fenner & Smith in Boston, and the fact that any investments held would not have been in his father's name, but there is absolutely no evidence before me whatever to suggest that there is any reality in that suggestion, or that any assets belonging beneficially to the deceased, even if not in his name, would not have been discovered in the ordinary course of the administration of his estate by the executors; and there is no material on which I or any court would be justified in considering any relief on the basis that the executors were acting in bad faith.
23. Thirdly, Mr French makes serious allegations of falsification and fraud against the executors. He suggests that material demonstrating this is to be found in the treatment in Probate accounts of some small National Power dividends. These, he says (and I am prepared fully to accept) were originally left out of the Probate accounts, and he says that they were the subject of a lie that they had been retained by National Power when they had in fact been sent to the executors (page 89). However, correspondence with the company's Registrars shows clearly that these dividends have been unclaimed. I am prepared to accept that they were sent out, but they were not cashed and in that sense they were clearly retained by the company after the deceased's death pending Probate. Indeed in some of the correspondence the company's Registrars actually say they are now retaining outstanding and future dividends. It was only in mid-2000 that they were claimed and received by the executors: see their letter of 17 June 2000 at pages 41-42. There is absolutely no reason to think that the executors had previously deliberately suppressed them. Indeed, Mr French did talk before me of confusion with other shares. These are dividends in very small amounts. There is no plausibility in any suggestion that what happened was with a view by the executors to making off with the dividends, as the claimant seems to wish to suggest.
24. Fourthly, Mr French says that he applied at Chester Crown Court for additional orders on 22 December 2000 and "would like the appeal courts to look into the truth by upholding them". He attaches the applications for such additional orders. The Court of Appeal cannot be asked to make orders in respect of matters which have not been considered or decided at first instance, but Mr French tells me that the County Court did, understandably, refuse to deal with the applications since the whole action had been struck out. There is no basis for seeking further orders in an action which has been struck out and if, as I consider, it must remain struck out, there is no basis on which I can consider carrying the matter any further or grant permission to appeal in respect of any refusal which there may have been to make such orders.
25. A further quite separate objection to the orders sought is that on the material before me they are palpably misconceived and lacking in any factual justification. For identification purposes they relate to redirection of mail, the Inland Revenue, Messrs Tudor Williams again and a firm of solicitors whom Mr French asked to act for him from whom he would like further explanation as to why they declined to act. If the question arose, I would refuse permission to appeal on the grounds that there is no real prospect of success in obtaining such orders.
26. Mr French said very frankly before me that obtaining evidence to prove the misconduct which he asserts really relies upon obtaining orders to enable him to investigate further, but that is an entirely circular assertion. In order for any court to grant any relief, it must have some evidence before it suggesting that such relief may be appropriate. There is none here.
27. The upshot is that these applications are in my judgment misconceived and must be dismissed.
ORDER: Applications dismissed