England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		4 February 2008

MR JUSTICE NORRIS:

1. To save the parties further expense I will proceed immediately to judgment and in the judgment state only that which is necessary to explain the conclusion at which I have arrived.
2. The order I propose to make is that the Claimants shall have permission to discontinue their claim. I will order that the first and second Defendants shall have their costs out of the deceased's estate on the indemnity basis to be the subject of a detailed assessment in default of agreement. I will order that the Claimants shall pay the costs of the first, second and third Defendants on the standard basis from 1 July 2007, those costs to be the subject of a detailed assessment in default of agreement. I will make no other order for costs.
3. A brief statement of the reasons for that conclusion is as follows. The late L F Allen died on 17 January 2005. She left a house and some £2,000 in cash, a total estate of just about £157,000. The disposition of those assets was governed by a Will that she made in 1994 with the assistance of solicitors ("the 1994 Will"). Under the 1994 Will she left one granddaughter a legacy of £10,000 and divided her estate thereafter between her younger son, his wife and that granddaughter. She thereby cut out of her inheritance her other son and her six other grandchildren.
4. Probate of the 1994 Will was granted. But in August 2005 a later Will dated 1999 was discovered ("the 1999 Will"). This is a Will written on a Will form, apparently in the handwriting of the deceased. By the 1999 Will she divided her estate, in effect, equally between her two sons appointing the husband of one of her granddaughters and one of her grandsons to be her Executors.
5. In non-contentious probate proceedings relating to this 1999 Will, the two witnesses to it swore affidavits as to the circumstances of its creation. The two witnesses were a granddaughter, Jacqueline Clark and another granddaughter, Andrea Cox. On 21 December 2006, the two executors named in the 1999 Will, Guy Smith and Anthony Allen Junior commenced a probate action seeking to prove the 1999 Will in solemn form, that being a step necessary if it was to be propounded having regard to the grant in favour of the 1994 Will.
6. The Particulars of Claim simply sought proof in solemn form of the 1999 Will. A Defence was filed on behalf of the professional Executors of the 1994 Will and the younger son ("D3")). It may be said that the weapon of choice for D3 was the blunderbuss rather than the rifle. He attacked the 1999 Will on the grounds that it was a forgery; but he also ran an alternative inconsistent case that it had been procured by undue influence; and a yet further alternative inconsistent case, that it had not been unduly executed or alternatively had been signed without the knowledge and approval of the testatrix. In paragraph 21 of the Defence D3 gave notice that he would seek an order under s.51 of the Supreme Court Act 1981 and under CPR Part 48.2 for orders adding the two witnesses to the Will and certain beneficiaries under the 1999 Will as parties to the proceedings for the purposes of costs only.
7. The allegation of forgery was a serious one, but it did not allege that any particular individuals had forged the Will, though that was implicit from paragraph 21 of the defence, which seemed to proceed on the footing that the two witnesses in the Will were complicit in its forgery and that Anthony Allen was somehow connected with the forging.
8. In these circumstances the Executors of the 1999 Will wrote to ask what were the grounds for the making of that a serious charge. They pointed out that the allegation of fraud should only be pleaded in circumstances where the maker has some evidence on which to establish a prima facie case and they asked that that evidence be produced to them. The response they received from D3's solicitors was that the material was stated in D3's Defence and that the solicitor and counsel who had settled the Defence were both satisfied that serious allegations of fraud, as pleaded, could properly be based upon it. A perusal of the terms of the Defence would have led a reader to the view that the case of forgery was at that stage based largely on inference (as was the case in undue influence).
9. Given the significance of the pleaded allegation of forgery, it became necessary to consider whether an expert should be appointed to express an opinion. This had been a course suggested by D3's solicitors in a pre-action letter dated 3^rd February 2006, where they proposed that there should be a jointly instructed handwriting expert. They repeated that suggestion in a letter dated 23^rd February 2006, and again in a letter dated 29^th June 2006. They pointed out that in the proceedings they would seek an order for the appointment for a single joint handwriting expert. The attitude of the Executors of the 1999 Will was not to agree to the appointment of a handwriting expert:

"..in circumstances where your clients have produced no supporting or corroborating evidence."

10. In evidence the putative Executor of the 1999 Will, Mr Smith, has elaborated on that explanation and said that he held the view that it was unlikely that there would be a sufficient range of verifiable comparative signatures to enable an expert to reach a view. However, once the proceedings had commenced in December 2006 and the Defence alleging forgery served on 13^th February 2007, a proposal that there should be a jointly instructed expert was eventually agreed immediately before a case management conference on 9^th May 2007.
11. Following that, Dr Giles was instructed on 4^th July 2007, and she produced a report approximately one month later. In that report she noted that her examinations had been limited by the fact that the testatrix's handwritings and signatures naturally lacked fluency. But she concluded:

"That there is strong support for the view that the writing of the body of Will, the signatures in the name of L F Allen and the writing son the envelope are not genuine writings and signatures of the deceased."

According to Dr Giles' calibration "strong evidence" lies at approximately the point on the scale of a 75 per cent chance.

12. The Executors of the 1999 Will were not content with that conclusion and formulated further questions which were answered by Dr Giles on 9 August, by which she acknowledged that the signatures available to her for comparison were not ideal, but they were sufficient for the conclusion which she had expressed, the main ground of which was the natural lack of fluency in the undisputed handwritings and signatures of the deceased and the pressure with which the disputed signature had been written.
13. By the autumn of 2007, each of the 1999 claimant Executors, the 1994 Executors and D3 had incurred very substantial costs with the prospect of further costs being incurred should the matter proceed to trial. So far as the Claimants were concerned, they had spent approximately £35,000 and anticipated another £45,000 up to trial. So far as the 1994 Executor Defendants were concerned they had spent some £10,500 and anticipated another £18,000 to trial. So far as D3 was concerned he had spent some £34,000 and anticipated a further £44,000 to trial.
14. Against that background, on 28^th January 2008, the Claimant 1999 Executors filed an application requesting that they be directed and permitted to abandon their claim and for the determination of the costs orders which should be made arising out of the grant of that relief. They had flagged up their intention to make that application in a letter which explained:

"They have taken the decision they have taken regarding the abandonment of the claims, because they considered that it was no longer reasonable for them as Executors to proceed with those claims in the light of all the evidence, notwithstanding the direct conflict the handwriting expert and the attesting witnesses to the Will. That decision was partly motivated by the funding position. The Claimants as executors have been funding the litigation on the Claimant's side and they took the view that they could no longer properly fund the claims to trial and are not prepared to do so."

15. The making of this application provoked a response from D3's solicitor. Her witness statement is a surprising one. In paragraph 22 she says:

"For the avoidance of all doubt the third Defendant will not seek to oppose an order that the Claimant's claim be discontinued."

In fact, as has appeared from the submissions made to me today, that is not accurate and D3, in fact, does oppose discontinuance. He seeks an adjournment of the hearing with a view to his making further applications then (instead of discontinuance) seeks a dismissal of the claim following a trial. Then the solicitor's witness statement says that what is sought is an order that the Claimant's shall pay all of the Defendants' costs of the claim to be assessed, if not agreed, on an indemnity basis. In support of that five allegations are made. First that the 1999 Executors have not acted in a neutral fashion, but only in the interests of the potential beneficiaries to the 1999 Will. Secondly, that they are not the sole driving force or the sole funders of the litigation, but they are acting, in effect, on behalf of the beneficiaries to the 1999 Will and their families. Thirdly, that D3 entertains the strong belief that the 1999 Executors have never truly believed in the substance of their claim, but at all times proceeded with the claim to cover up a potentially criminal act of forgery. Fourthly, that the 1999 Executors have from the very outset been part of a conspiracy, if not actually to forge a Will, then to perpetuate a claim knowing the 1999 Will to be forged. Fifthly, that the 1999 Executors have, in fact, been acting so as to carry into effect a statement allegedly made by one of the beneficiaries under the 1999 Will, that they will do anything that was necessary to dissipate the value of the Estate, such that D3 would not benefit.

16. In fairness to the solicitor, who there set out her client's suspicions, which were nowhere pleaded, she does also make some points on procedure, in particular, drawing to the court's attention the fact that, from an early stage she and her firm had been seeking the engagement of a jointly instructed expert. The response of the 1999 Executors has been

(a) to bridle in the strongest terms at the allegations of conspiracy and bad faith now made against them;

(b) to point out that at all times they have taken the view that there was an apparent conflict between the sworn evidence of two witnesses, both registered nurses whom they had known for 20 years and respected in their professional field, as to the circumstances in which the Will was executed and on the other hand, the professional opinion of Dr Audrey Giles based on the sample documents before her;

(c) to repeat that the conclusion at which they have arrived is that they cannot run the risks in costs of seeking further to propound the 1999 Will and that even though they do not accept Audrey Giles' conclusions they are unable to carry the challenge further.

17. The jurisdiction which I am exercising is firstly that conferred by Part 57.11 of the Civil Procedure Rules. This disapplies the normal provisions as to discontinuance of actions and substitutes the right for a Claimant to apply for the claim to be discontinued or dismissed on such terms as to costs or otherwise as the court thinks fit.
18. I deal first with the question of discontinuance. I am in no doubt that this litigation between the members of this family ought to be brought to an immediate conclusion. There seems to me be no question of compelling Executors personally to put at risk further funds in the pursuit of an action which they do not wish to pursue. Nor, in my judgment, can there in the circumstances of this case be any question of continuing these proceedings simply to enable the D3 to bring personal costs order proceedings against other parties. Paragraph 21 of the Defence shows that from the outset this was in prospect, but D3 has taken no steps actually to carry out the threatened steps. It seems to me that there could not be any adjudication of the questions that would arise on a personal costs claim without a trial of the issue whether the Will was, in fact, forged or not.
19. Accordingly, if personal costs orders were to be sought then they ought to have been sought before the trial of this action in order that at the trial it would have been quite plain what case was being made against the prospective parties to personal costs orders and they could have been cross-examined in the context of the issue whether the Will was forged or not. It cannot be satisfactory to attempt to reach conclusions on the personal liability on costs of the two witnesses to the 1999 Will and of the beneficiaries under the 1999 Will, without having reached a properly founded view as to the genuineness of the 1999 Will itself. In these circumstances it is too late to say when an application for discontinuance is made,

"Please postpone the adjudication. Keep the litigation alive. I wish to plead out a claim against some other people on the grounds that they are forgers, are complicit in forgery or are conspirators."

This ought to have been done earlier.

20. I turn then to the second question, which is that of costs. What order for costs ought to be made when the proceedings are discontinued? In ordinary cases costs on discontinuance are provided for in CPR 38.6. But CPR 38 does not apply to Probate claims: CPR 57.11. So it is the general jurisdiction, not a specific rule, that applies. The jurisdiction to make any award of costs is governed by CPR Part 44. In the context of the present claim the outcome of the action has not been judicially determined. It is going by default because one party is seeking to discontinue. In these circumstances the court must be careful only to exercise the discretion afforded by CPR Part 44 on the basis of uncontentious fact or on the basis of sound conclusions that can be drawn from the available material without that having been tested at trial.
21. The normal rule embodied in CPR Part 44.3 itself is that costs follow the event. The event is that the Claimant's claim fails and the Defendant Executors and the third Defendant have succeeded. However, the court is empowered to make a different order taking into account all the circumstances. In Probate cases certain sorts of conduct have emerged as relevant conduct to take into account when making an order in a Probate action. These were recently reviewed authoritatively by Henderson J in Re Kostic [2007] EWHC 2909 (Ch). Founding his judgment on CPR Part 44 he noted that a positive case has to be made before departing from the general rule that costs follow the event; that in Probate cases there were two principles which had tended to modify that general rule; one applicable if the Testatrix was the cause of the litigation (a consideration that does not apply in this case); the other, if circumstances reasonably lead to an investigation of the matter (possibly relevant here). In that latter category of case he observed that the general rule was that costs should lie where they fall. He pointed out that these two great principles on which the court acted were neither exhaustive nor rigidly prescriptive, being guidelines which would have to be applied in the individual case.
22. It is with the second of the two great principles that I am concerned. In the course of his judgment Henderson J noted the words of Sir James Wilde in Mitchell v. Gard (1863) 3 Sw. & Tr. 275, commenting on the reason for the second rule, namely that if there be sufficient and reasonable ground for challenge (looking to the knowledge and means of knowledge of the opposing party) the losing party may properly be relieved from the costs of his successful opponent. He explained that the reason for that rule was that it struck a balance between two principles of high importance, namely, that on the one hand that parties should not be tempted into fruitless litigation by the knowledge that their costs will be defrayed by others and on the other, that doubtful Wills should not pass easily into proof by reason of the cost of opposing them.
23. Henderson J also noted the observation in Davies v. Gregory (1873) LR 3 P& D 28 that in order to engage the rule it was necessary that all proper steps should have been taken by the party setting up the Will as to the facts of the case. But if, having done so they bona fide believed in the existence of the state of things, which if it did exist would justify litigation, then each party must bear its own costs.
24. In my judgment, this case for part of its life falls squarely within that second principle. Whilst it is true that an Executor is not obliged to propound a Will (see Rennie v. Massie (1866) LR 1 P & D 118) it is nonetheless the case that an Executor is prima facie entitled to propound the Will in which he is named as Executor -- see the judgment of Sir James Hannen in Boughton v Knight (1873) LR 3 P&D 64 where the following passage occurs at p.77:

"…it appears to me that an Executor is prima facie justified in propounding a will;……. yet if it is made to appear that, when propounding it, he must have known that he was attempting to obtain the sanction of the court to a document which could not be supported, he ought to be condemned in costs."

And then at page 79:

"I think the question of the Testator's capacity was a very grave one and the Executor could not be expected to take upon himself the responsibility of leaving it undetermined."

25. In the instant case, in my judgment, absent a finding that these Executors were parties to a conspiracy to propound a Will that they knew had been forged, on its face the Will appeared to be valid and was witnessed by two persons of standing and apparent probity. In these circumstances the 1999 Will executors were entitled to seek to propound it. The suggestion that they should not have propounded it at all seems to me misplaced. The suggestion that they ought immediately to have obtained an expert report also seems to me to be misplaced. Ultimately, the question of whether a will should be admitted to proof or not is one for the court, as is demonstrated by the judgment of Rimer J in Wren v. Wren, Even where Dr Audrey Giles thinks that there are strong grounds for holding the will to be a forgery, it is still necessary to weigh her evidence against that of the attesting witnesses and the court may well conclude, as in Wren v. Wren, that the attesting witnesses are to be believed and their evidence preferred.
26. But it seems to me that there must have come a time when these 1999 Executors were aware of the full range of attacks upon the 1999 Will, were aware of the strength of the case on forgery and were aware of the amount that it would cost them to test that case of forgery against the evidence of the attesting witnesses whom they believed. They certainly knew that by 10 August 2007 when Dr Giles' report was produced. CPR Part 44 encourages the court where possible to make orders for costs by reference to a proportion of the receiving party's costs or by reference to a date. I have considered whether I should make an order simply by reference to the date of Dr Giles' report. I have decided that that would not fairly reflect the fact that from an early stage D3's solicitors had been advocating the need for a jointly prepared expert report. It was only on 8^th May 2007 , that the Claimants eventually submitted to that, leading to the production of a report in August 2007 which, when weighed with the prospective risk in costs, has formed their view as to the future conduct of the action. I think that they ought to have agreed to an expert report immediately after the Defence had laid out the grounds of opposition to the 1999 Will (February 2007), from which point a Probate action in which the issue of forgery would be canvassed was inevitable. However much it may have been in doubt earlier, however much they may have suspected that D3 was bluffing, by the time of the Defence it became clear that he was serious. I think that by fixing 1^st July 2007 as the date by reference to which costs would be assessed, I have allowed for a reasonable time after the Defence to have elapsed for the instruction of Dr Giles and the preparation of a report by her. Nothing in addition to Dr Giles' report has entered into the equation.
27. For that reason I will order that down to 1^st July 2007, there will be no order as to costs, because the Claimants to the 1999 Will were justified in seeking to propound it. From 1^st July 2007, by which date they ought to have obtained a jointly instructed experts' report, they are liable for costs, because by then they knew both the issues in the action and the costs of resolving them and ought to have formed their present view much earlier.
28. An application was made in the skeleton argument that costs be assessed on the indemnity basis. I do not consider that there is anything in the conduct of this application which takes it outside the law of contested Probate actions which ought to be visited with an order for indemnity costs. Those are the reasons for the order I have made.