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
(Master Bowles)

		Royal Courts of Justice Strand London, WC2 Tuesday, 22nd October 2002

1. LORD JUSTICE JONATHAN PARKER: This is an application by Mr Victor Parks, the claimant in a contentious probate action, for permission to appeal against an order made on 25th July 2002 by Mr David Kitchin QC, sitting as a deputy High Court judge in the Chancery Division. By that order the deputy judge dismissed Mr Parks' appeal against an order made on 29 November 2001 by Master Bowles granting summary judgment under Part 24 of the Civil Procedure Rules in favour of the defendant in the action, Mr Roy Clout; dismissing the claim; and ordering Mr Parks to pay Mr Clout's costs, which the Master assessed at £3,360.50. Mr Parks appears in person to make this application.
2. Since the appeal for which permission is sought is a second appeal, section 55(1) of the Access to Justice Act 1999 and CPR rule 52.13 apply, with the result that permission will only be given if the appeal would raise an important point of principle or practice, or if there is some other compelling reason why the Court of Appeal should hear it.
3. The background to the application is briefly as follows. Mr Parks is the brother of the late Mrs Shirley Clout, who died on 6 August 1999. Mr Roy Clout is her surviving husband. On 20 September 1999 Letters of Administration of Mrs Clout's estate were granted to Mr Clout as next of kin, on the footing that Mrs Clout had died intestate. At the time of her death Mrs Clout's estate consisted of cash, savings and chattels, and an undivided share in the matrimonial home, 71 Tumulus Road, Saltdean, Brighton. 71 Tumulus Road was registered at Her Majesty's Land Registry in the joint names of Mr and Mrs Clout on trust for themselves as tenants in common.
4. In December 1999, some three months after Mrs Clout's death, her mother died, whereupon a trust fund, which had been established by Mrs Clout's grandmother, vested in Mrs Clout's estate.
5. In the action Mr Parks contends that Mrs Clout did not die intestate and that Mr Clout obtained the Letters of Administration by fraud. He alleges that during her lifetime Mrs Clout told him (Mr Parks) that she and her husband had made "joint Wills", which provided that, on the death of the survivor of herself and her husband, two-thirds of the value of 71 Tumulus Road would go to her side of the family and one-third to Mr Clout's side of the family; that Mr Clout admitted to him in a telephone conversation shortly before Mrs Clout's funeral that there were joint Wills; and that Mrs Clout had always been explicit as to what should happen to her estate on her death.
6. In support of his case, Mr Parks alleges that Mr Clout told lies in support of his application for Letters of Administration. He points in particular to the fact that Mr Clout initially swore that the value of the estate did not exceed £25,000 but that subsequently, following an application by Mr Parks, he delivered an account showing a total net estate of a value in excess of £71,000. Master Bowles concluded that the various matters alleged by Mr Parks, even if established as true, did not give rise to any real prospect of his succeeding in establishing the existence of a valid Will as at the date of Mrs Clout's death. In paragraph 26 of his judgment he concluded that the evidence sought to be adduced by Mr Parks in support of his case for the existence of a Will was "simply insufficient to enable the court to be satisfied that the requirements of the due execution of the Will have been met."
7. This conclusion echoed the rule established in Atkinson v Morris [1897] PD 40 CA, to the effect that hearsay evidence is inadmissible on the issue of due execution. While recognising that the hearsay rule had been abolished in relation to civil proceedings by the Civil Evidence Act 1995, Master Bowles nevertheless concluded (in paragraph 26) that "the rationale of the rule ... survives."
8. As to the alleged admission by Mr Clout, the Master concluded (in paragraph 29) that he could not conceive of a court:

"pronouncing in solemn form for a will simply on the basis of an admission, by the person who would otherwise be entitled on intestacy, that such a will had been executed."

He continued:

"I do not see how, based upon such an admission, the court could be satisfied that the formalities of execution had been fulfilled. This is particularly the case when the alleged admission comes not from a person with any understanding of the relevant formalities, such as a solicitor, but from a lay person with, in all likelihood, no knowledge of the legal requisites of a valid will."

9. The Master went on to say that in any event he had grave doubts as to the weight which could properly be placed on the alleged admission, given the circumstances in which it was made.
10. As to Mr Parks' contention that Mrs Clout had always been explicit as to her testamentary intention, the Master observed:

"The fact that a person has clear testamentary intentions is no evidence at all that those intentions were put into effect." (Emphasis supplied.)

11. The Master accordingly concluded that the evidential material then before him was insufficient to give rise to any realistic prospect of Mr Parks being able to establish that Mrs Clout died testate, and he went on to conclude (in paragraph 34) that there was no real prospect of any further material becoming available at trial, were the action to proceed. He said that the fact (if it were the fact) that Mr Clout had lied about the value of the estate "was of no evidential weight" in establishing that a valid Will existed.
12. On Mr Parks' appeal the deputy judge took the view that Master Bowles had approached the matter correctly and agreed with the Master's conclusion that Mr Parks had no real prospects of success at trial. The deputy judge continued, in paragraph 24 of his judgment:

"In my judgment, the matters alleged in support of the claim, even if accepted at trial, would fall far short of establishing that Mrs Clout made a valid Will complying with the formalities required by the Wills Act."

13. The deputy judge accordingly dismissed Mr Parks' appeal and confirmed the costs order made by the Master.
14. By his appellant's notice Mr Parks seeks to appeal not merely the dismissal of his appeal on the substantive issue as to whether summary judgment should have been granted and the claim dismissed, but also the orders for costs. I say at once that I can see no basis for granting permission to appeal against the costs orders which were entirely within the discretion of the Master and of the deputy judge.
15. Mr Parks has referred me this morning to rule 44.3 of the Civil Procedure Rules and in particular to paragraph (3)(b) of that rule, which states that the general rule that the unsuccessful party will be ordered to pay the costs of the successful party does not apply to probate proceedings. That, however, simply leaves it in the discretion of the court as to where the burden of costs is to fall.
16. Turning to the substantive issue, however, whilst it is undoubtedly the case that Mr Parks will face considerable difficulties in establishing the existence of a valid will should the case be allowed to proceed to trial, I nevertheless take the view that it is at least arguable that, in so far as they concluded that due execution of a Will can never be established by inference from circumstantial evidence, the Master and the deputy judge may have been setting too high an obstacle in Mr Parks' way. And if it be possible to prove the existence of a duly executed Will by inference from circumstantial evidence, then, on the basis of the material sought to be relied upon by Mr Parks in the instant case, it must (I think) be at least arguable that it should be left to the trial judge to determine whether that material is sufficient to support such an inference.
17. In the circumstances, it seems to me that there are arguable issues raised by the proposed appeal which can be said to give rise to a point of principle of some general importance so as to justify the grant of permission for a second appeal. I accordingly grant permission to appeal on the substantive issue but I refuse permission for a separate appeal against the costs orders made below.
18. I would only add that I am anxious that Mr Parks should not be distracted by my grant of permission to appeal from a proper appreciation of the difficulties which stand in his way in pursuing his claim.]
Order: Application for permission allowed on the substantive issue.