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
(Miss S Proudman QC)

		Royal Courts of Justice Strand London WC2 Friday, 1st November 2002

1. LORD JUSTICE WARD: This is a very unhappy case. It is unhappy because the applicant for permission to appeal, Mrs Radford, seeks to challenge the validity of the last will and testament of her mother. By that will, or purported will, mother left 75 per cent of her estate to her son, the half-brother of the applicant, and only 25 per cent of it to Mrs Radford. Not surprisingly, Mrs Radford (who believes that she was a good and devoted daughter, and I personally have no reason whatever to question any of that) feels that she should have been given at least her equal share in the estate, if not more. She therefore cannot accept the validity of this will. She challenged it in the proceedings which were brought by Mr Stoutt to prove the will. She contended that there had been a forgery.
2. The case got off to a very unhappy start. It appears that on Thursday 11th July the solicitors acting for Mrs Radford sought to withdraw from the case in some way or another. The trial was due to begin on the following Monday. This was very short notice and, not surprisingly, it caused Mrs Radford difficulty. But then, and unusually, it seems that on Friday 12th July the same solicitors were in negotiation with Mr Stoutt's solicitors and agreed some form of compromise. Thus the action began on the Monday with an application by Mr Stoutt, in effect, to enforce the consent order. As appears from the judgment of the judge, Miss Proudman QC, Mrs Radford protested about this. She had had second thoughts about the wisdom of the terms of that consent and she sought to resile from it. The judge permitted her to do so because of her vehement opposition to the matter. The judge concluded her judgment by observing that:

"The potential costs implication of proceeding was explained to [Mrs Radford] but she wished, nevertheless, to proceed to trial."

3. Mrs Radford tells me (and again I have no reason to doubt it, although I do not have a transcript of the evidence before me) that she felt she needed more time to prepare. I am sympathetic to her predicament. It must have been difficult for her to master the detail of this case on such short notice. But the judge did no more than give her overnight to prepare. That is, therefore, a first ground of challenge to the proceedings: that the judge's reluctance to grant a longer adjournment was wrong and that there was some procedural irregularity. Allied to that is a general complaint about the quality of the advice Mrs Radford was getting from her solicitors, whose conduct has been reported to the Solicitors Disciplinary Tribunal.
4. I am sympathetic to her predicament but, unfortunately, those decisions are essentially trial management decisions for the judge who hears the case. This Court cannot interfere unless they are blatantly wrong in the sense that they are decisions outside the generous ambit within which different views can be taken. So although I may not have proceeded there and then - I do not know if I would or would not, but I incline to think that I might have been more sympathetic to a litigant in person - that does not matter in the Court of Appeal. It has to be shown that the judge was plainly, blatantly wrong in the sense I have described. I simply cannot say that there is a realistic prospect of establishing that. I cannot find that there was a procedural irregularity which would vitiate the whole of these proceedings.
5. Part of the assessment would have been with some eye to the merits, and it is therefore to the merits that I turn. The will which is before me was said by a witness, Mrs Murray, to have been written by her on a pro forma document which one can easily purchase. There is a big dispute as to who had purchased it and how that purchase came about. Certainly a lady employed by the deceased did procure a will. There was a challenge to her evidence that she bought two wills, one for herself and one for the deceased, given that she produced a debit slip (said to be paid on her credit card or whatever) in the amount of £5.49, which cannot easily be divided by two; so there is a difficulty about that. On the other hand, Mrs Radford says that it seems absurd to think that her mother should have telephoned her son, Mr Stoutt, at a time when he was abroad, asking him to get his secretary to get the will to her, as the secretary said she had. So there are oddities about that particular part of the story.
6. There is a complaint that a witness statement apparently made by Mrs Radford was not a genuine document. I am not totally sure whether Mrs Radford is saying that the signature on it was forged or whether she is saying - and I think this is what she intended to convey to me - that the signature may have been hers but material has been added to the document, so that it is not the document she signed. It was not dated. It was not hers; yet it was put in by her solicitors, and that is another cause of grievance against those solicitors.
7. But at the end of the day the issue was whether Mrs Radford had proved the document was forged. The judge heard Mrs Murray. The judge heard her cross-examined. She heard of discrepancies in her evidence. She found (I quote from paragraph 25 of the judgment):

"I do not find that her recollection of all matters relating to that day are necessarily accurate."

8. A big question-mark hung over whether or not Mrs Stoutt telephoned Mrs Radford in Australia on that day, 5th February (which happens to be Mrs Radford's birthday), as Mrs Murray said. That could not have taken place because the telephone bills simply do not support it. The judge was therefore aware of that challenge and said:

"There are questions as to whether Mrs Stoutt's BT line was her only telephone, but leaving that aside I accept that Mrs Murray may have been mistaken about the matter since she visited Mrs Stoutt on many occasions over many years."

9. But then, crucially, the judge said this:

"What I do find is that Mrs Murray was an honest witness, and her recollection as to the making of the 1999 will, a one-off event, is accurate."

10. She pointed out how odd it would be for Mrs Murray to have concocted all of this evidence. She said:

"There is nothing in the evidence of Mrs Murray, taken together with that of all or any of the defendant's witnesses, to establish this, nor is any motive suggested for such a piece of fraud. On the contrary, as I have said, I accept Mrs Murray's evidence as honest and accurate in the material respects."

11. But the case did not end there. The judge noted that the solicitors acting for Mrs Radford had apparently obtained an expert opinion, but they chose not to rely upon it. I am not totally sure what to make of that. The inference is, of course, that the advice they got was unfavourable to the prospects of her success. Whether that had anything to do with them not wishing to act any longer I do not know. But this is the crucial finding of the judge:

"32.The claimant, on the other hand, obtained a report from, and tendered for cross-examination, the handwriting expert, Mrs Phillippa Lavell, who expressed the opinion that the signatures of both Mrs Stoutt and Mrs Gray are very likely (in evidence before me, as she said, that means at least 85 per cent) to be genuine.

33.In these circumstances the defendant is in my judgment quite unable, even leaving Mrs Lavell's evidence out of account, to satisfy me on the balance of probabilities that the signatures on the 1999 will are not those of Mrs Stoutt or Mrs Gray. When one puts that expert evidence into the scale, and adds it to Mrs Murray's evidence of what happened on 5th February 1999, the conclusion is in my judgment inescapable that the 1999 will is genuine and duly executed."

12. Mrs Radford sincerely, honestly, implacably disagrees. She says that she has some knowledge of graphics herself - she is an artist - and she knows her mother's signature and can recognise it when she sees it. She says to me, "That is not my mother's signature."
13. She therefore procured her own expert. There are difficulties procedurally about allowing her to adduce that evidence, and there is an application before me for it to be admitted. The difficulty, as I will try to explain to her, is that, if evidence could have been obtained but was not obtained, then the Court of Appeal very rarely allows the matter to be reheard. She is a litigant in person, so I shall overlook the fact that they did have some expert's report, presumably unfavourable.
14. Let us look at what her expert, Mrs Jaffe, says. Her conclusion in the report now placed before me is that:

"[Mrs Murray has written the vast majority of the text on the Will. [Mrs] Murray had not attempted to forge the signature on this document and has not written on behalf of the witness Barbara Gray either."

15. So she says that Mrs Murray did write the content of the will and did not write the signature of the testatrix nor of the other witness, Mrs Gray.
16. Then she says this:

"The significant handwriting movements that apply to Freda Ann Stoutt's [the deceased's] authentic signature have been described. The majority of the graphological features can be detected within the signature on the Will. However, the Primary pressure, the Secondary pressure, the Rhythm and the basic control of the stroke movement is not exactly the same. This would imply that the writer, who I have to presume is Freda Ann Stoutt, was under extreme psychological, emotional and physical stress whilst writing this signature. The differences and the correlation between the signature on the Will and other samples that have been utilised is clearly stated within this report."

17. In other words, this expert is saying that the signature of the deceased is likely to be genuine, though made under pressure.
18. But, says the new expert:

"I can confirm that the witness named as B Gray (Barbara Gray) has not written on the Will."

19. So this expert, contrary to the other, is saying that in her opinion Mrs Gray (sadly deceased) did not do it; and Mrs Murray, in her opinion, did not forge Mrs Gray's signature. If Mrs Murray did not forge Mrs Gray's signature, one then asks, who did?
20. The judge had to decide that question. The judge believed Mrs Murray, and challenges against a finding of fact like that are virtually impossible. In the words of Lord Hoffmann, a finding of fact of that kind by a judge who has seen the witnesses - has observed them and found them to be accurate in some senses and inaccurate in others - is virtually unassailable; and that is where this case breaks down. I am afraid Mrs Radford has no realistic prospect of successfully upsetting a crucial finding of fact, supported by an expert witness, and supported to a considerable extent by the expert she now wishes to adduce. It is, I am afraid, a hopeless task.
21. Unfortunately, Mrs Radford is going to have to learn to live with the harshness of this testamentary disposition. I am afraid the Court of Appeal is quite unable to help her. I must dismiss the application, but with my thanks to Mrs Radford for the courteous, good-humoured way in which she has presented her arguments.
Order: application for permission to appeal dismissed.