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 EXETER COUNTY COURT
(MR RECORDER N HALL)

		Royal Courts of Justice Strand London, WC2
		19 February 2004

1. LORD JUSTICE PILL: This is an appeal from a decision of Mr Recorder Hall, given at the Exeter County Court on 10 July 2003, whereby he dismissed a claim by Mrs Jeannette Ann Atkins ("the claimant") that a firm of solicitors, Messrs Dunn & Baker, had been negligent and had caused her loss.
2. In 1992 the claimant's father, Mr Reginald Henry Webber ("the deceased"), made a valid Will leaving the whole of his estate to his only natural daughter, the claimant. On 31 August 1996 the deceased married for a second time, his wife's name being Winifred. The couple lived at the deceased's home at Chloevale, Lympstone, Devon.
3. The deceased realised that the remarriage had invalidated the 1992 Will. He decided to do something about it and he contacted Mr Kempson, a partner with the defendant firm. They were family solicitors with an office in Exmouth. Mr Kempson had already undertaken a small conveyancing transaction for the deceased. The two men were known to each other as solicitor and client, the evidence being that they had had one meeting which lasted about 45 minutes. On this occasion the deceased spoke with Mr Kempson for about 20 minutes and gave what Mr Kempson described as clear and emphatic instructions that Mr Kempson was to provide a new Will, for Winifred to have a right to occupy Chloevale for her life and otherwise "Will identical as before for remainder". That would have provided that the claimant had the benefit of the estate, subject to Winifred's life interest.
4. A draft Will was prepared in accordance with the deceased's instructions and sent to him with a letter of 25 February 1997 which stated:

"Dear Mr Webber

Your Will

I now enclose a draft of your proposed Will for your approval. Please let me know if the Will meets with your approval before I prepare a fair copy for you to sign. I look forward to hearing from you."

The document itself was headed "Draft".

5. There was no further communication between the deceased and the solicitors, except for a circular letter sent to clients of Dunn & Baker in November 1998 advising that Mr Kempson had retired from the defendant firm and had joined another firm in Exmouth. The circular letter sought the instructions of clients by returning a tear-off form advising whether Title Deeds/Wills should be transferred to the firm to which Mr Kempson was moving or should remain with the defendant firm. The deceased returned the slip and noted on the letter, which he retained with his papers, "Will transferred to Ford Simey Daw Roberts, 30 November 1998". That was within a short time of receipt of the letter by him.
6. The deceased died on 15 August 2000, intestate, about three and a half years after he received the draft Will and letter from Mr Kempson. The whole of his estate passed to his widow, Winifred. She died on 19 March 2002, and on her death her estate passed to a daughter by a previous marriage.

It is common ground that the claimant has a right of action as an intended beneficiary under the terms of the draft Will (White v Jones [1995] 2 AC 207).

7. Evidence was given to the recorder by the claimant and by Mr Kempson. The recorder found both witnesses to be "frank, honest and helpful". He referred to Mr Kempson as beIng "painfully honest". The claimant told the court that her father had been meticulous in his dealings. He replied to, and understood, all correspondence he received.
8. The recorder made two findings in relation to her evidence. First, that if the claimant's father had made a conscious decision not to go through with implementing the draft Will, he would probably not have told her about it. Secondly, the recorder found that, if the claimant's father had not intended her to inherit anything from the estate he would not have made a Will at all. Since the correctness of those findings is challenged on behalf of the claimant, it is appropriate to refer to the relevant parts of her evidence.
9. In the context of being asked whether her father realised that the previous Will had been revoked by his marriage, the claimant said:

"....And I just asked him in passing did he realise, and he said yes, he did. And then a few weeks later he informed me that he'd been to see Dominic Kempson to make a new Will to put everything in order."

Asked about her father's intention, the claimant said:

".... He was, he was a man that didn't pretend anything. If he didn't want me to have anything he would either have told me or not have bothered to have done one. Because that's the sort of man he was.

....

Q. And if he'd got the draft Will and decided, made a conscious decision not to go through with it, would you have known?

A. Probably not. There again, you know .... I can only say what I think at this moment in time, I think no, because the position never arose, so I don't know. He did particularly tell me he had done a Will that was exactly the same as far as I was concerned, with the proviso for Winifred. And it was left at that. We never had any other discussion about it."

The recorder asked:

"I just want to make sure I've got that answer right. If father had made a conscious decision not to go through the with the draft Will he probably would not have told me.

A. Probably not."

10. The recorder stated that he regarded as significant the absence of any response to Mr Kempson's letter of 25 February 1997, which the recorder held was a stark and striking contrast to his other conduct in relation to correspondence.
11. When Mr Kempson was cross-examined, he was asked about the position if, having supplied a draft Will pursuant to instructions, he did not receive a response. The recorder found that Mr Kempson regarded his job as over, but:

"He agreed that it would be good practice to chase people up after two weeks or so in case they had forgotten."

The recorder then posed the question, which counsel agree is the issue in the case:

"Was it negligent of Mr Kempson not to have chased up his client with the draft Will?"

He considered Mr Kempson's knowledge of the deceased. The deceased had lived for three and a half years from the supply of the draft will. The recorder found that Mr Kempson was not on notice of any vulnerabilities in the deceased and that there was nothing to place an extra burden or duty upon him.

12. The recorder considered the relationship between solicitor and client. He referred to the evidence of Mr Kempson that clients are often peremptory in refusing or declining to proceed with Will instructions, sometimes for what he understood to be wholly illogical reasons and often in the face of complex or expensive consequences for members of their family. Mr Kempson gave evidence that he did not normally send a bill for an uncompleted Will to a client.
13. The recorder reached these conclusions. Paragraph 31:

"In my judgment, it was and remains reasonable, and the response of a reasonably competent solicitor, to treat the absence of a reply by the deceased to the draft as a lapse or suspension of his retainer.

....

In my judgment, in the real world of a busy high street practice it is, and was not, unreasonable for a solicitor to regard absence of response to a direct request for instructions on a discrete identifiable topic for a month as, indeed, a lapse in his instructions and his instructions and his retainer."

I do not consider it lowers the standard of care owed by a solicitor that his practice is a busy one or is a High Street practice.

The recorder continued:

"In my judgment there was no duty on Mr Kempson to chase up the deceased to make up his mind about the Will."

In reaching that conclusion the recorder accepted that:

"Mr Kempson knew the deceased was crystal clear as to the consequences of doing nothing, that is, that his Will would remain invalid, since the deceased himself had raised that issue.

He then considered what was likely to have happened had a reminder been sent by Mr Kempson to the deceased. At an earlier stage in the judgment, he had stated:

"I have to say that I heard no compelling evidence on behalf of the Claimant to displace the clear inference from the deceased's conduct that, in failing to reply to the letter enclosing the Will, that he no longer wished to proceed with that particular testamentary disposition."

Dealing specifically with causation later in the judgment, the recorder said:

"If I am wrong in my analysis of the retainer and the duty then the matter does not end there in my judgment. I have already touched on this topic earlier in my analysis. I am not satisfied that the Claimant has shown that there was a significant chance that the deceased would have acted differently if he had indeed been chased.

.....

Frankly, I cannot be satisfied that it is more probable than not that a chaser from Mr Kempson would have changed Mr Webber's mind, at least on the evidence laid before yesterday."

14. For the claimant, Mr Warner accepts that, in order to succeed, he has to overturn the finding of the recorder not only on the first issue of negligence but on what he accepts to be a finding of fact made by the recorder as to causation. Mr Warner submits that it was a perverse conclusion on the evidence and one which this court should reverse. Mr Warner also accepts that, upon the recorder's finding in relation to causation, no claim for damages could arise.
15. Mr Warner submits that, in failing to send a reminder, Mr Kempson was negligent. He relies upon Mr Kempson's own evidence as to good practice and submits that professional practice is the touchstone of whether a professional man falls below the standard of care required of him to the extent that his conduct was negligent.
16. Mr Warner has relied heavily upon submissions as to "retainer", the word used by the recorder. Mr Warner submits that professional rules require that there are only limited circumstances in which a solicitor can bring his retainer to an end. If it is not brought to an end, he remains under a duty to the client. Circumstances have not arisen in this case, he submits, in which the termination of the retainer was justified. While the retainer existed there should have been a follow-up. Clients are entitled to expect a certain service from their solicitor, including an obligation to remind the client of documentation he has been sent. Unless otherwise informed, the solicitor must proceed, at least to the extent of reminding the client of the need for action on his part. It is possible that a client might have forgotten about a document which he had received.
17. Mr Warner further submits that, even if that duty does not invariably exist, there were, in the circumstances of this case, factors which must lead to a conclusion that a reminder should have been sent. Mr Warner relies on the age of the deceased; that there was evidence that he had a sick wife to look after; that he could not, by February 1997, be treated as the meticulous man described by the claimant.
18. In my judgment the reliance on the retainer rules is misplaced in present circumstances. The evidence was that the instructions were that a draft Will should be prepared and submitted to the client. That was done promptly in accordance with instructions. The solicitor had completed the task which he had been asked to perform. It does not necessarily follow from the retainer rules, which cover a variety of situations, that in this situation there was inevitably a duty upon a solicitor to send a reminder.
19. For the defendant firm, Mr Simpkiss submits that the duty to send a reminder indeed does not invariably exist. As to whether it existed in this case, he relies upon the evidence from the claimant that the deceased was a meticulous man. There is no evidence that, notwithstanding his age, his mental powers had deteriorated by the time the draft will was sent. He relies upon the recorder's findings that Mr Kempson knew that the deceased was crystal clear as to the consequences of doing nothing; that is that he had no valid Will.
20. I am unable to accept that invariably and inevitably there is a duty upon a solicitor, who has carried out instructions to prepare a draft Will and has sent that draft to the client, to follow the matter up. There will often be situations in relation to Wills and other documents where there is a duty to send a reminder or further guidance to the client. An example which arose in argument is the situation where instructions were given to have a Will executed before budget day. It may be negligent for a solicitor, who had sent a draft, to fail to remind the proposed testator that budget day is approaching and that, if action is to be taken, it should be taken promptly.
21. As Mr Kempson stated in evidence, clients do change their minds, for good reason or bad, maybe following consultation with other members of the family or after their own reappraisal of the circumstances in which they find themselves, or for other reasons. This was a case where there was a potential conflict of interest between the claimant and Winifred, especially as Winifred's health was such that the need for expensive care could have arisen as well as the need to have a roof over her head. In the circumstances of this case, the recorder was entitled to hold that "the ball was in the client's court", and that the failure to send a reminder did not constitute such a fall below the standard to be expected of a competent solicitor as to amount to negligence.
22. On the question of causation, the finding of the judge is in my view unimpeachable. The two points relied on by Mr Warner are, first, that, after the death of the deceased when his documents were discovered, it was found that he had signed the draft Will. There was no indication of the circumstances in which he did so. Secondly, reliance is placed upon the letter of 20 November 1998 and the note inscribed on it when the deceased sent his instructions to the defendant firm, "Will transferred to Ford Simey Daw Roberts, 30 November 1998". Mr Warner submits that it follows, inevitably, from the existence of those two documents that, had a reminder been sent within a short period of the draft will being sent in 1997, the deceased would have proceeded with the execution of the draft Will.
23. For the defendant firm, Mr Simpkiss relies upon the evidence of the claimant herself and the judge's finding upon it. It is clear that the deceased was aware of the situation in which he found himself and of the distribution which would follow upon his death. He submits that the signature of the Will itself proves nothing as was found by the judge. It is not suggested that the deceased believed that the Will in his possession had been duly executed and the relevance is in relation to the claim that, had the testator had a reminder, he would have executed the Will.
24. I am quite unpersuaded by the submission on behalf of the claimant in relation to either or both of the documents. The two documents hardly go to the same effect. It is not clear from the reply to the letter of 20 November 1998 which document is being referred to; whether it was the earlier Will or the copy of the draft Will which the solicitors had in their possession. It in no way demonstrates, and neither in my judgment does the signature on the document he retained, that he would have executed the Will had he received a reminder from Mr Kempson.
25. The evidence is very much the other way. The judge was entitled to reach the conclusion he did, a conclusion which I find in no way surprising. The evidence which has emerged of the attitude of the deceased, while much of it would not have been known to Mr Kempson at the time so cannot be relied on by him in relation to his conduct, demonstrates the unlikelihood of the deceased either being unaware of the situation in which he was, or that a reminder from Mr Kempson would have stimulated any action on his part.
26. It is accepted that, upon those findings, the question of assessing damages does not arise and I do not find it necessary to assess. Mr Simpkiss conceded that if the judge or this court had been prepared to find that there was a reasonable prospect of the deceased executing the Will upon receipt of a reminder, the claimant would be entitled to damages upon the basis of the loss of a chance. I do not find it appropriate to go into that issue further.
27. For the reasons I have given, I would dismiss this appeal.
28. LORD JUSTICE THOMAS: I agree.
29. LORD JUSTICE JACOB: I also agree.

Order: Appeal dismissed with costs to be subject to detailed assessment if not agreed. Permission to appeal to the House of Lords refused.