England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE-UPON-
TYNE COUNTY COURT
(MR RECORDER LANCASTER)
Application of Defendant for PTA and SOE

		Royal Courts of Justice Strand London WC2 Thursday 17th May 2001

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal and for a stay of execution. Judgment was given by Mr Recorder Lancaster in the Newcastle-upon-Tyne County Court on 26th March 2001. He heard an application by the claimant, Mr Alan Lumley, for provision under the Inheritance Provision for Family and Dependants Act 1975 and for contribution from the estate of the late Mrs Olga Geldard Riddell towards a joint liability of the estate and Mr Lumley under the terms of a mortgage with the Halifax Plc secured on a property called West Lodge, High Gosforth Park, Newcastle upon Tyne. The defendant in the proceedings was Mr Melvin Robinson. He is the personal representative of the late Mrs Olga Riddell.
2. Having heard counsel for Mr Lumley and Mr Robinson in person the Recorder made this order:

(1) There be judgment against the estate for £12,600;

(2) It is declared that the estate of the deceased be jointly and severally liable for the claimant to repay the outstanding mortgage debt to Halifax Plc and to indemnify the claimant as to one-half thereof until the mortgage debt is paid;

(3) The claim under the Inheritance Provision for Family and Dependants Act 1975 is dismissed; and

(4) the estate shall pay the costs of the claimant to date and of the defendant to 30th September 2000, such costs to be the subject of a detailed assessment.

3. The Recorder refused permission to appeal.
4. Mr Robinson, in his capacity as personal representative, seeks permission to appeal. He acts in person.
5. The brief background to the proceedings is this. Mrs Riddell was Mr Robinson's aunt. She made a will on 3rd June 1950, under which the beneficiaries are Mr Robinson and his brother John. She died on 26th May 1999. A grant of letters of administration with the will annexed was made on 11th November 1999 in favour of Mr Melvin Robinson.
6. Mrs Riddell had lived from about 1953 onwards with Mr Alan Lumley, the claimant. They were involved in a number of transactions with property. The only one which I need mention for the purposes of this judgment is the acquisition in joint names in 1982 of the property West Lodge, High Gosforth Park, Newcastle. That property is subject to a mortgage in favour of the Halifax. The property is worth about £170,000, but about £130,000 is due to the Halifax.
7. Mr Lumley's claim for contribution was put in three ways. First, the mortgage giving rise to a joint and several liability, he should be indemnified in respect of his share of the instalments, which he claims to have paid to the Halifax since November 1993 until the date of Mrs Riddell's death in May 1999. He claimed the sum of £10,700 in respect of that period. Secondly, he claims that he is entitled to half of the payments which he has made to the Halifax since Mrs Riddell's death. He puts that at £1,900. Thirdly, he claims that he is entitled contribution for half of the payments in respect of the mortgage, and those payments should be made by the estate for the future until the mortgage is repaid. The Recorder found in favour of Mr Lumley on all claims. That was how the sum of £12,600 was computed, being the total of £10,700 and £1,900 in respect of what he has already paid, and that is why the Recorder granted a declaration in respect of the liability to contribute to the future repayments of the mortgage.
8. In those circumstances the Recorder dismissed the claim under the 1975 Act, saying at the end of the judgment that the sums which he had ordered to be repaid or had declared to be a liability of the estate to repay were likely to diminish the estate in their entirety, so that it was inappropriate that the estate should pay any more money to Mr Lumley under the 1975 Act.
9. Mr Robinson has criticised the judgment on a number of grounds. In particular, he criticises the Recorder's conclusion that Mr Lumley was a truthful witness, whose evidence he accepted. Mr Robinson says that in this respect the Recorder was wrong. He should not have accepted uncorroborated evidence from Mr Lumley in respect of claims against the deceased's estate. Such claims, he said, when they are uncorroborated by the evidence of other witnesses or documents, should be very carefully scrutinised before they are accepted.
10. Mr Robinson's case is that there was no corroborative evidence of payments that had been made prior to death; there was no documentary evidence about the domestic financial arrangements between Mrs Riddell and Mr Lumley; and there was no documentary evidence, he contended, about the payments which Mr Lumley claimed to have made after Mrs Riddell's death. He said also that if Mr Lumley had voluntarily made the payments it was unreasonable that he should recover them from the estate in the absence of a written agreement giving him that entitlement.
11. In the same vein, Mr Robinson pointed out that Mrs Riddell was not alive to give her side of the story; and it was inequitable that the estate should be liable to contribute to on-going mortgage payments in respect of a property in which, by reason of the survivorship under the beneficial joint tenancy of West Lodge, the estate has no beneficial interest.
12. I pointed out to Mr Robinson that, in order to obtain permission to appeal, he must show that this appeal has a real prospect of success. It is difficult to say that there is a real prospect of succeeding on some of the criticisms that Mr Robinson makes of the judgment. It is especially difficult to appeal to this court on questions of fact when the Recorder has had the unique advantage of seeing the witness give evidence and form a view as to whether that witness's evidence is truthful or not.
13. I am, however, persuaded that permission to appeal should be granted on the broader point that the order made by the Recorder does produce what seems to be a surprising result. The position, as I have indicated, is that Mr Lumley is now the sole owner of West Lodge. He was living with Mrs Riddell for over 40 years as husband and wife. The effect of the judge's order is that the estate remains equally liable with Mr Lumley and is bound to indemnify him for the mortgage liability to which the property is subject. The position under the Administration of Estates Act 1925 is that if the property had been the sole property of Mrs Riddell and devised by her to Mr Lumley then, in the absence of a contrary direction, he would take it, subject to the mortgage. I can understand that the position may be different in law when the property in question does not form part of the estate because it is a beneficial joint tenancy which goes by survivorship to the other joint tenant. However, it seems surprising that the estate should remain jointly liable so as to entitle Mr Lumley to have half the mortgage instalments paid out of the estate in respect of a property in which he is now solely and beneficially entitled.
14. I can understand that the provisions for joint and several liability in the mortgage entitle the Halifax to make claims against the estate if the security and the covenant by Mr Lumley were insufficient to repay the mortgage. This matter, however, is simply dealing with the rights of the parties as between the surviving joint tenant and the beneficiaries under Mrs Riddell's will. There is a case for contending that Mr Lumley's right is to an indemnity out of the property rather than of contribution from the estate.
15. I am unable to say, without hearing full argument, what is the true legal position. I am, however, satisfied that there is a real prospect of this appeal succeeding in whole or, more likely, in part, particularly in relation to the declaration the Recorder has made in respect of the future liability of the estate.
16. I have mentioned to Mr Robinson the existence of the Court of Appeal ADR scheme, but he has not shown any enthusiasm for taking that up. I will not therefore make any directions in respect of that.
17. I give him permission to appeal. He will be free on the appeal to make all the points which he has set out in his written submission and any other point which he wishes to make. I am not seeking to limit the grounds on which he can appeal.
18. I have also pointed out to him the adverse consequences that can follow as to costs if the appeal is unsuccessful. It must be emphasised that granting permission to appeal is no guarantee of the success of the appeal. If an appeal is unsuccessful in this Court, the normal order which is made as to costs is that the unsuccessful appellant must pay the successful respondent's costs. It is for Mr Robinson to decide what risks he is willing to run in that respect.
19. I should mention to you also, Mr Robinson – this is a matter entirely for you – you done this yourself below, but there are different bodies willing to give you help, either presenting your appeal or representing you, and they do it for nothing. There is a Bar pro bono scheme where you can apply for free representation. I do not know what your position is about legal aid.
20. THE APPELLANT: I do not think I would qualify for that actually.
21. LORD JUSTICE MUMMERY: Probably not. If you go to the Citizens Advice Bureau in the main hall of this building --
22. THE APPELLANT: Yes.
23. LORD JUSTICE MUMMERY: -- they will be able to give you details of the Bar pro bono scheme where you can get barristers who have experience of various types of cases to do those cases without fee. You are entitled to do your case, but the correct legal answer to this case is not that obvious to me.
24. THE APPELLANT: With regard to submitting extra evidence, how would I go about that?
25. LORD JUSTICE MUMMERY: If you want to bring extra evidence – I thank you for bringing that up – to this Court which was not before the Recorder you must make an application.
26. THE APPELLANT: Right.
27. LORD JUSTICE MUMMERY: You get a form – you can get one from the Civil Appeals Office if you go round there now – which you must fill in and you must submit with that form the additional evidence that you want to bring and apply for permission.
28. THE APPELLANT: Okay.
29. LORD JUSTICE MUMMERY: The court would not make a decision on that without allowing Mr Lumley's lawyers to say whether they agreed to this further evidence going in or whether they opposed it. If they opposed it, there would probably have to be oral argument about that.
30. THE APPELLANT: Okay.
31. LORD JUSTICE MUMMERY: The normal rule is you cannot bring evidence to this court which you could, by using reasonable efforts, have brought before the court below, otherwise there would be no end: people would bring their cases forward in bits and pieces over different courts over the years.
32. THE APPELLANT: Okay, well I mean --
33. LORD JUSTICE MUMMERY: But if it is new evidence, something that has happened since the hearing, something you have discovered since the hearing which you could not reasonably have discovered before.
34. THE APPELLANT: I would only do it if it turned out that I thought it was very important.
35. LORD JUSTICE MUMMERY: What evidence are you thinking of bringing?
36. THE APPELLANT: I have not actually decided yet. I mean, basically, in this case I am the only one who has got, you know, documentary evidence. They have left that to me. So I think you would find that most of the documentary evidence in there is provided by me. I am still trying to find certain amounts of evidence, but whether any of it is important enough to make an application I do not really know at present.
37. LORD JUSTICE MUMMERY: You had better think about that. Even if you decided to do the case yourself, it might be helpful to get some legal advice about that.
38. THE APPELLANT: Okay, thank you.
39. LORD JUSTICE MUMMERY: So the only order I am making today is that you can have permission to appeal.
40. THE APPELLANT: Thank you.
ORDER: Permission to appeal granted.