England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		22nd May 2008

MR JUSTICE NORRIS:

1. The late Mrs Gill made a will on 27^th April 1993. She herself died in 2006. The issue is whether that will is a valid will.
2. No solicitor's file survives from the making of the will in 1993, and the solicitor who prepared it, it is common ground, has no distinct recollection. He is able only to speak from what he would usually have done in the course of his practice.
3. No issue arises on the capacity of Mrs Gill, and that must be clearly understood.
4. Under the terms of her 1993 will, Mrs Gill left her estate to her husband should he survive her by one month; and if not then to the RSPCA. Mr Gill died in 1999, so since 1999 the RSPCA has been the sole beneficiary of Mrs Gill's will.
5. The Present claim is brought by her daughter. Her daughter alleges in the original particulars of claim (accepting that Mrs Gill had capacity to make a will) that Mrs Gill did not know and approve of the will that she made in 1993 with its effect that her entire estate was left to charity.
6. In pursuit of that original pleaded case, at paragraphs 6.1 to 6.11 particulars were provided of the want of knowledge and approval. The claimant now seeks to amend that original case in two respects: first to strengthen the case on want of knowledge and approval by identifying that the late Mrs Gill suffered from a mental disorder at the extreme end of the anxiety disorder spectrum. This did not impinge upon her capacity to make a will, but it is said, impinged upon her ability to know and approve what was said to her at meetings, or contained in documents put before her. Want of knowledge and approval can, it is common experience, shade into an allegation of undue influence. This is squarely faced up to in the proposed amended plea. And the second amendment to be made is to advance a case of undue influence.
7. The principles upon which amendments are allowed are familiar. Amendments should be allowed so as to bring the real case of the parties before the Court for determination, if that can be done (a) without occasioning prejudice to the other party which cannot be met by an order in costs, or (b) in a manner which does not otherwise undermine the administration of justice.
8. In the instant case, I am satisfied that consistently with most principles the amendments ought to be allowed. Each amendment in my judgment passes the test of having a real prospect of success, that is to say cannot be dismissed as fanciful.
9. The objections to allowing the amendment according to these principles are essentially three: first, Ms Talbot-Rice says that it is too late to make the amendments. The amendments depend upon the Court admitting the evidence of a geriatrician or other experts to deal with the disorder from which is said the late Mrs Gill suffered. Such expert evidence was the subject of an order by Mr Justice Lewison who provided that if an application was to be made for the adducing of expert evidence, then it must be made by 28^th March 2008. By agreement between the parties that time limit was extended until 12^th May 2008. On 12^th May, the claimant's solicitors wrote to indicate that they were minded to apply for a medical expert's report as to whether or not Mrs Gill knew and approved of the contents of the will. They did not however issue their application until three days later on 15^th May 2008. On that same date, the draft amended particulars of claim were sent, which set out in details the nature of the amendments to be proposed. A trial is fixed for 14^th July 2008. The question arises whether undue prejudice is caused by the fact that the amended case is advanced on 15^th May in respect of a trial due on 14^th July. In my judgment the amended case can be dealt with, because there is adequate time both for the claimants to provide their medical evidence to the defendants and for the defendants to deal with it, even allowing for the fact that the defendants are operating from a standing start.
10. The second objection is that the proposed amendments and medical evidence in support of them are irrelevant, because they simply provide a medical label to characteristics which are already pleaded. I do not accept this submission. It seems to me that distinction may be made between the character of the testatrix and the condition from which she suffered. Medical evidence will assist the judge to analyse what is said to be the condition from which Mrs Gill suffered, and its likely manifestations. So in my judgment, the medical evidence is indeed relevant to a case of want of knowledge of approval and to a case of undue influence. The nature of the testatrix, character and physical and mental condition, are key factors in assessing, whether on the balance of probabilities she knew and approved the contents of a document placed before her, and are also key factors as to whether she could be and was so subjected to pressure that the document she produced was not the outcome of her own volition.
11. The third objection was that the adducing of expert evidence was disproportionate. I respectfully disagree with that submission. To me the key issue in the case is going to be whether the testatrix knew and approved the contents of the will, or whether, if she did know and approve its contents, it in fact represented her true wishes or represented her submission to some form of pressure. I do not regard expenditure on medical evidence on that key issue to be disproportionate.
12. For much the same reasons I propose to allow the amendment relating to undue influence. I think a distinction is to be drawn (though it may be difficult to draw on the facts) between (a) not understanding a document because of the circumstances in which it is presented and the condition of the testatrix at the time; and (b) a document which is presented, the contents of which the testatrix knows and understands but the signature of which she feels unable to resist. The two factual situations are closely allied, but they are conceptionally separate. I would accordingly allow the amendment relating to undue influence.
13. I will discuss with counsel afterwards the timetable for the amendments. It follows that I would also permit the adducing of expert evidence by the claimant in support of her case, and of course by the defendant in support of its case. It seems to me that this is an appropriate case in fact for the sequential exchange of expert evidence, since the claimants are already underway and can serve their evidence earlier than the defendants may do. I will again discuss with counsel a timetable for the sequential exchange of experts' evidence leading to a meeting of experts.
14. That brings me shortly to two final points relating to expert evidence. The first relates to valuation evidence of a farm, which is relevant to the claimant's alternative case in proprietary estoppel. In my judgment, the correct course in relation to this subsidiary issue is for the parties to seek to agree the value of that farm by 6^th June. If they are unable to agree the valuation by that date, then each may give separate instructions to the expert who has already been instructed, Robin Jessop, for the purposes of the production of a single joint expert report on valuation.
15. It is also part of the claimant's case that she has suffered detriment by reason of arranging her employment, having regard to her expectation in relation to inheriting the farm. Whether that case is good or bad will of course be determined at trial. She seeks, as part of the detriment, to say that she has suffered loss by not being able to take up the advantages of maintaining an academic appointment. The defendants put this in issue.
16. What is needed to assist the trial judge on the issue of detriment is a statement of what would have been the claimant's entitlement both in terms of remuneration and in terms of pension entitlement, had she maintained either a part-time or conceivably a full-time post at Leeds University.
17. The underlying factual material, it seems to me, can be derived from the University of Leeds. What is said by the defendant is that that material must be tested by addressing the assumptions on which calculations may be based. If that is necessary, then that shall be done by a single, joint expert accountant, separately instructed by each party, if the parties fail to agree on joint instructions. In relation to that I would again direct that the parties should seek to agree the pension and benefit computations by 6^th June. Should they fail to do so, they should seek to agree the identity of an accountant, failing which the matter must return to court for an accountant to be appointed. It may be appropriate for the parties to consider, instead of an accountant, approaching a remuneration advisor used the computation of claims in personal injury cases.
18. That is the way I propose to dispose of the applications now before me.

MR JUSTICE NORRIS: Can I deal with the draft order? I will work from the draft that was annexed to your skeleton argument, Ms Angus.

MS ANGUS: My Lord, yes. I think we both formally need the direction in paragraph one-

MR JUSTICE NORRIS: You have paragraph one. I think the fees in paragraph two should be £3,000. From 28^th May can you put 6^th June, in paragraph 2.2. In 2.6, the report should be filed by 17^th June. 3.11 would propose to stand. Have you any observations about that Ms Talbot-Rice? Single, joint expert...

MS TALBOT-RICE: My Lord no.

MR JUSTICE NORRIS: I was suggesting Robin Jessop.

MS TALBOT-RICE: You were.

MR JUSTICE NORRIS: But I did not invite your submissions on that. There is no reason to doubt Robin Jessop cannot act as a single, joint expert is there?

MS TALBOT-RICE: I don't think so.

MR JUSTICE NORRIS: No. Right. Put in Robin Jessop there then. 3.2 can go.

MS TALBOT-RICE: [Inaudible] to 2.1.

MR JUSTICE NORRIS: Yes.

MS TALBOT-RICE: If Your Lordship put in evidence report a single expert in the field of accountancy or remuneration [inaudible].

MR JUSTICE NORRIS: Yes. Yes.

MS TALBOT-RICE: Great.

MR JUSTICE NORRIS: Thank you. I am going to send you out to agree the details of the order and come back if you need to, but can I just deal with paragraph four. 4.2, I think claimant's experts report should be served by 10^th June. 2 B, defendant's expert report by 24^th June. And then in sub-paragraph four, joint expert report by 1^st July. Any points in principle you want to raise about that? Right.

MS ANGUS: [Inaudible].

MR JUSTICE NORRIS: 1^st July I said, yes.

MS ANGUS: My Lord, that leaves the issue of costs I think, and if you're happy with paragraph five and six of the order.

MR JUSTICE NORRIS: Yes I am.

MS ANGUS: My Lord, we had originally suggested to Wilson's, the solicitors for the first defendant, the appropriate costs order on any direction is the costs in case, it's what one would normally expect.

MR JUSTICE NORRIS: Yes.

MS ANGUS: However I'm going to depart from that, for reasons which I hope I'm going to explain to you relatively quickly, because I'm aware that your time is tight and precious today.

MR JUSTICE NORRIS: yes.

MS ANGUS: My Lord, what happened was, as you will have seen from the correspondence that Ms Talbot-Rice reviewed in part, if I can ask you to look at Tab One, there's a, I beg, yes Tab One, page 10, in the bold numbering.

MR JUSTICE NORRIS: Yes.

MS ANGUS: There's Wilson's letter of 7^th May, and then in that paragraph two, they say they're going to call an expert accountant and a valuer in relation to the valuation.

MR JUSTICE NORRIS: Yes.

MS ANGUS: And they say a new suggestion, we agree in all of the directions, and we'll let you have a draft order shortly.

MR JUSTICE NORRIS: Yes.

MS ANGUS: 9^th May, next letter. We haven't received a response to our proposal in paragraph two so we'll be making an application to court for directions.

MR JUSTICE NORRIS: Yes.

MS ANGUS: We haven't had a draft order needless to say. 9^th May there is a letter from Mishcon's to Wilson's explaining, questioning really whether this evidence is required. They refer to Gillet v. Holt and Jennings -v- Rice

MR JUSTICE NORRIS: Yes.

MS ANGUS: And I think he had repeatedly said expert evidence on assistance cases is really not that important. They also say, and this is a point that I did mention in my skeleton, the responsible employer.

MR JUSTICE NORRIS: Yes.

MS ANGUS: Of the Human Resources Department of the University of Leeds has already set out what the loss of pension benefits are.

MR JUSTICE NORRIS: Yes.

MS ANGUS: Why do you need an expert accountant? All the points are, that are really being ventilated by Your Lordship today clarify why you want, a market valuation, and again on 12^th May, over the page:

'Can you confirm you've abandoned your intention about an agricultural expert, we intend to apply for a medical expert. We're not sure if you've issued the application, if not can we defer making an application as it might be possible to agree directions.'

And then over the page, at 13, we make the point about an amendment, and can I ask Your Lordship to look at the final paragraph on that page:

'We await a response of our letter sent yesterday regarding expert evidence. Given that there's only nine weeks to trial, there is a pressing need for us to discuss and if possible attempt to agree directions in relation to expert evidence, failing which applications will need to be made.'

Over the page, Mr Keenan[?] tried again with Mr Steer[?] by email:

'In an effort to avoid incurring unnecessary costs [inaudible] our application to due process [inaudible] by close of business, please can you so consider your application, would you please send it to us.'

And [then they report after that the urgency in pleas?] and invite them to have a telephone call, which I submit is the sensible way to approach it, to discuss this.

Over the page at 17, the Wilson's lengthy letter. In the second paragraph My Lord, you'll see that they say, they have sent the application with this letter, so on 15^th, that's when we got served with the application, they served everybody else on the Friday before, they apologise for not serving us, and they go on to say that they object to the medical evidence and they give some explanation at this point as to why they're seeking the expert evidence that they were seeking, but My Lord, at this point in time, effectively the claimant has been forced to issue an application for directions, which could have been done by a consent order.

My Lord, most of the points, in fact I think all of the points that we made in correspondence, the points which Your Lordship has made, and has led to the situation where every single piece of relief[?] that we asked for, the direction we asked for has been granted. The only difference being that Your Lordship has directed sequential-

MR JUSTICE NORRIS: Yes.

MS ANGUS: Provision of expert reports, well if that had been put to us, we would have agreed. So My Lord, in the circumstances, the fact that this has troubled Your Lordship today is, I would contest, the result of the third defendant taking an unnecessary, uncooperative and over-aggressive approach to this application for directions. And of course [inaudible] Your Honour's disapproval of that by ordering that the firm[?] is made to pay the cost of today in any event. And My Lord there is a costs schedule, if I could hand it up.

MR JUSTICE NORRIS: No thank you. I am clear that the order I should make on this application is that the costs will be in the case. This is a directions hearing. An application by you was necessary in order to amend the particulars of claim. The issues raised on that amendment really excited the other issues with which I have dealt. The fair order is costs in the case.