England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION, COURT OF PROTECTION
(Jacob J)

		Royal Courts of Justice Strand London WC2
		25th May 2001

25th May 2001
1. LORD JUSTICE JONATHAN PARKER: Before the court is an application by Mr David Gribler for permission to appeal against an order made by Jacob J on 16th June 2000 dismissing his appeal from an order made by Master Lush in the Court of Protection on 10th April 2000. By his order Master Lush upheld a decision of Assistant Master Janes made in the Court of Protection on 9th February 2000 refusing Mr Gribler's application for the cancellation of registration of an enduring power of attorney made by Mr Gribler's mother, Mrs Bessie Gribler, on 9th February 1995 and registered by the Court of Protection on 19th November 1999. At the date of Jacob J's order Mrs Gribler, a widow, was some 91 years of age. From documents which Mr Gribler has supplied, to which I shall refer if a moment, it appears that Mrs Gribler has since died.
2. Mr David Gribler is one of Mrs Gribler's three sons. The other two sons are Ian, who lives in Malaga, Spain and Jeremy who lives in San Francisco. Mr David Gribler himself lived in the United States for many years until 1994.
3. It is Mr David Gribler's case that the power of attorney to which I have referred was revoked by a letter dated 29th December 1999 signed by Mrs Gribler and addressed to the two attorneys, who are solicitors and partners in the firm of Harold Benjamin Littlejohn. The letter reads as follows:

"Dear Miss Diamond and Miss Vincent

Thank you for your visit this Monday 27th September 1999 which you assured was a goodwill visit and non-chargeable.

Effective forthwith any power/s of attorney granted by me to you personally or your firm are summarily rescinded. Kindly acknowledge these instructions and that you have actioned my instructions of 17th inst.

Sincerely."

4. and then it is signed "B Gribler".
5. The reference to Mrs Gribler's instructions of 17th September 1999 is a reference to a letter of that date signed by Mrs Gribler which requested the attorneys to remit all funds to her private account.
6. Before Master Lush were letters from two medical practitioners, Dr Maria Gomez and Dr Pugh, who saw Mrs Gribler in January 2000. Both doctors considered that she was of sound mind. However, Dr Gomez said:

"She was unaware that she had revoked this power [that is a reference to the power of attorney] and would only have filled in paperwork to do so under duress."

7. In an extremely careful and thorough judgment Master Lush accepted the evidence of the two doctors as to Mrs Gribler's mental capacity, but he did not accept that it had been shown that she was acting of her own free will when signing the letter dated 29th September 1999, which, as was common ground, had been prepared by Mr David Gribler on his word processor. In this connection the Master said this:

"In the circumstances I am not satisfied that Mrs Gribler had animus revocandi on 29th September 1999 and dismissed the argument that the power created by the instrument no longer subsides."

8. The Master went on to hold that the power was a valid power and he rejected Mr Gribler's attack on the suitability of the two attorneys. As to this latter point the Master said:

"I must place on record my admiration of the determination and perseverance of these two attorneys and their loyalty to the donor in extremely difficult circumstances. I can see why Age Concern recommended them to Mr and Mrs Gribler. They are a credit to their profession."

9. Of Mr Gribler, by contrast, the Master said this:

"In my opinion David Gribler's application has been a combination of frivolity, malice, vexatiousness and self interest, and his action was fuelled by a complacent belief that, because he is on income support, he would automatically be immune from any penalty as to costs."

10. Finally the Master rejected a complaint by Mr Gribler that he had been the victim of a breach of Article 6 of the European Convention on Human Rights (the right to a fair trial).
11. Mr Gribler appealed against the Master's decision and the appeal was heard by Jacob J on 16th June 2000. The judge agreed with the Master that the registration of the power of attorney should not be cancelled. He also shared the master's view that there was no evidence at all that the attorneys had behaved in any way improperly in carrying out their duties. He accordingly dismissed the appeal. Mr David Gribler now seeks permission to appeal defence Jacob J's order.
12. Mr Gribler has not attended court today. I have, however, been handed a fax which he has sent, dated 21st May 2001, in which he seeks an adjournment of the application due to his ill health and that of June Gribler, whom he describes as his ward. He says this in the first two paragraphs of the fax:

"I urgently require a renewal/and/or adjournment due to my illhealth & that of June Gribler my ward whom I am escorting this week for Doctors' & Specialists' appointments and tests for pernicious anaemia brought on by chemotherapy for Colon Cancer see addendum pages 1 to 1A.

I have appended numbered sheets (addendum) to support this renewal/adjournment, because of the suspicious circumstances surrounding the purported 'death' of purported donor of an EPA, Bessie Gribler."

13. The fax goes on to refer to two witness statements which are faxed with it and on which Mr Gribler seeks to rely. Also attached are documents from a Dr Oliver and from a Spanish lawyer.
14. So far as Mr Gribler's ill health is concerned, the relevant document, which is at page 1 of the bundle faxed with the fax which have I just read, is a letter from a Dr S Lakhani dated 25th April 2001. In the course of that letter Dr Lakhani says this:

"Mr Gribler suffers from high blood pressure and on his recent review, the blood pressure was still not well controlled. He is awaiting further blood investigations to assess implications of high blood pressure on his physical health.

...

Because of their ill health, they are not able to attend the court."

15. It is apparent from the passage which I have quoted that the letter refers not only to Mr David Gribler but also to June Gribler, who it appears was suffering on that date from a chest infection/bronchitis.
16. I can see no basis for allowing an adjournment of this application. The letter from the doctor is dated a month ago. The condition to which it refers does not seem to me to be such as would prevent Mr David Gribler from attending this application to make it in person should he have desired to do so, nor does the letter suggest any period of time during which Mr Gribler might have been unfit to attend court. In the circumstances, the application to adjourn is rejected and I propose to deal with this application on the basis of the skeleton argument and other documents which Mr Gribler has submitted in support of the application and which I have considered.
17. In support of the application Mr Gribler relies on the points which he sought to make to Master Lush and to Jacob J. He has also raised a new point, namely that since Mrs Gribler was, as he asserts, domiciled in Spain the provisions of the Enduring Powers of Attorney Act 1985 no longer apply. I am in no position on this application to form a view as to whether his assertion that Mrs Gribler changed her domicile from England to Spain is correct. On the face it, it would be appear to be doubtful, to say the least, whether she could have had the necessary intention to change her domicile. But even if she did become domiciled in Spain that would not effect the validity of the power of attorney in the United Kingdom.
18. Since this is, as is apparent from the procedural history which I have outlined, a second tier appeal, in the sense that it is an appeal from a decision which was itself given on appeal, section 55(1) of the Access to Justice Act 1999 applies. Accordingly, Mr Gribler must demonstrate that the proposed appeal involves an important point of principle or practice, or that there is some other compelling reason why the Court of Appeal should hear it. In my judgment, Mr Gribler has wholly failed to do that. The documents which he has invited me to consider, and which I have considered, do not disclose any arguable ground for an appeal against Jacob J's decision. Indeed in my judgment such an appeal would be entirely hopeless.
19. Accordingly, I dismiss this application.
ORDER: Application dismissed. No order as to costs. (Order does not form part of approved Judgment)