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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Fox v Pettigrew [2013] EWCA Civ 1152 (24 July 2013) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/1152.html Cite as: [2013] EWCA Civ 1152

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(HHJ McCAHILL QC)

		Royal Courts of Justice Strand London WC2A 2LL
		24 July 2013

Lord Justice Longmore:

1. This appeal arises out of a sad family probate dispute. There is a challenge to the validity of a will created by a lady called Mrs Edith Jewell on 6 May 2003. Mrs Jewell is the late mother of Susan Pettigrew, Pauline Pascoe, and Caroline Blake (to whom I shall refer as "the third parties") and also the mother of their younger brother, Alan James Jewell.
2. Mr James Jewell and Mrs Edith Jewell were married and owned and operated a family farm called Pennance, near Falmouth in Cornwall. In late 1981 Mr James Jewell suffered a heart attack and was scheduled to have open heart surgery in the summer of 1982. Mr Alan, if I may call him that, submits that Mr James Jewell's chances of survival were 50/50 and in any event he would be unable to carry out all his farm duties after his operation.
3. It is against that background and the fact that the third parties had either moved out or were in the process of moving out of the family home that Mr Alan submits that he and Mr and Mrs Jewell came to an agreement that if the defendant, Mr Alan, "threw in his lot" with his parents by assisting with the running of Pennance, the farm would pass to him when the later of his parents died. Mr Alan agreed to assist with the running of the farm and was invited to and did in fact join the farm partnership in early 1986.
4. Mr James Jewell died on 27 March 1997. In the spring of 2002 Mrs Jewell began to suffer from a series of physical and mental impairments including a stroke that by the start of 2003 left her without social life or mobility and impaired faculties. On 6 May 2003 she executed a new will, bequeathing part of her interest in Pennance to the third parties, and she then died on 22 December 2009.
5. In the light of the ensuing family dispute, the executors issued a probate claim on 30 April 2012, and Mr Alan has sought to challenge this will of 6 May 2003 on five separate grounds: first, lack of testamentary capacity; second, lack of knowledge and approval of the content of the will; third, failure on the part of Mrs Jewell's solicitors to reflect properly her intentions in drafting the will, so that the will should be rectified; fourth, that Mr and Mrs Jewell had earlier agreed to make identical irrevocable wills before Mr Jewell died, an issue which came to be known as the mutual wills issue; and fifthly, a matter which is contained in Mr Alan's counterclaim, namely a claim by him based on proprietary estoppel.
6. The case is due for trial in Bristol and came before HHJ McCahill for a case management conference on 23 January 2013. Prior to that case management conference, the third parties had submitted draft directions including a direction that there should be a split trial, with issues 1 to 4 that I have just described being dealt with as preliminary issues, and the counterclaim being stayed and dealt with at a second stage if necessary. It was submitted that that course would considerably reduce the time and cost of disposing with the claim.
7. The judge adjourned that case management conference on 23 January 2013 and directed the parties to prepare assessments of the time required for: (1) a trial of all the issues, and (2) a split trial, with the wills issues being dealt with at a preliminary issues hearing and a further hearing related to the counterclaim of proprietary estoppel.
8. The case management conference reconvened on 18 April 2013. The judge considered the trial estimates put forward by the parties. The defendant had estimated the difference between the two trial structures to be no more than two days, whereas the third parties' estimate put the difference at about five days. The judge favoured the estimate put forward by the third parties and said that if proprietary estoppel was dealt with separately, two-and-a-half days would be required, but that a full trial would take about seven-and-a-half days.
9. The judge then considered whether the wills issues could properly be separated from the proprietary estoppel issue. He considered that the parties should be required to deal with each of the wills issues, and he concluded that much of the evidence could be addressed in a comparatively short witness statement without going back over decades of detailed family history, which would be necessary for the proprietary estoppel claim.
10. At the hearing Mr Troup, who appeared for the third parties as he has appeared before us, said that a claim for mutual wills had not even been pleaded, since all that was said was that the wills mirrored each other, and that there was no allegation of a second agreement that the wills should be irrevocable, that being an essential part of any allegation of mutual wills, as set out for example in Re Goodchild [1997] 1 WLR 1216.
11. When the judge came to make his decision as to a split trial, he said this:

"Therefore on the basis of the current pleadings and the issues as defined I am persuaded that there is a proper role here for a trial of preliminary issues which includes not only those which I have indicated, ie testamentary capacity, knowledge and approval and rectification, but also the issue of mutual wills. Even if I were to be faced tomorrow with an application by Mr Warner to amend his pleading and for me to reconsider this ruling in the light of a pleading that did allege that additional agreement, it does not seem to me necessary to bring in every single aspect of detail about the history underlying his case for proprietary estoppel into a case even on an amended mutual wills case which alleged that additional [agreement].

It seems to me that it would be possible to look at the general background to provide context to see whether an agreement could be found or inferred without detailed examination of the minutiae which would be involved in the proprietary estoppel case. I am not encouraging an application to amend, nor am I encouraging an application for me to revisit my ruling. Nevertheless it would be naive of me not to consider that there will now be some attention to that particular point. Much will depend upon the evidence which is going to be called. I am looking at Mr Troup's application this side of the evidence and on issues as currently identified in the pleadings. Even if there were such an amendment I do not think it needs to bring in all the details which are involved in a proprietary estoppel claim (eg representation, detrimental reliance and the appropriate remedy) if all one were doing was adding context to an alleged agreement never to revoke or change a will after the death of the first to die. For those reasons, therefore, I do separate all the issues into two categories. The first trial will be confined to the four will-related matters; the second trial, if necessary, will deal with the issue of proprietary estoppel."

12. An order was accordingly drawn up, paragraph 2 of which said:

"The defendant's claim based on the doctrine of proprietary estoppel should be stayed pending the resolution of his other claims which shall be determined as preliminary issues… those other claims being

a. his claim to set aside the Deceased's will dated 6 May 2003… for lack of testamentary capacity and/or for lack of knowledge and approval;

b. his claim to rectify the Will;

and c. his claim based on the doctrine of mutual wills."

13. It appears there has been, since the hearing before Judge McCahill, an amendment to the defence, which is not opposed, and that amendment now is incorporated into paragraph 29, the first sentence of which was in the original pleading:

"The 1990 wills were mutual wills which once made (or at least on the death of James in the events that happened) bound the estates of both James and Edith then and thereafter."

And then there is added in red:

"For the avoidance of doubt the binding nature of the obligation arose from either:

29.1 An express or implied term of the agreement that preceded the making of the 1990 wills (and pursuant to which they were made) that neither James nor Edith (as the case might be) would revoke their will after the death of the first of them; or

29.2 A separate but collateral agreement (to the said agreement) that neither James nor Edith as the case might be would revoke their will after the death of the first of them. This collateral agreement is evidenced in the same manner as already pleaded in § 26 above.

In either case it being inimical to the assurances given by both to the Defendant…and to each other if the survivor could alter their will after the first to die in a manner inconsistent with the fulfilment of those assurances."

14. It therefore follows, as it seems to me, that Mr Alan will in fact, in the light of that amendment if not before, have to give evidence twice if he fails on the wills issues, and not only will he have to give evidence twice, but he will be giving evidence twice in relation to a large extent of the same or similar matters.
15. But, even without the application to amend, I must confess to finding the judge's reasoning difficult to follow. Mr Alan's pleading relies in paragraph 26, the paragraph that is referred to in the amendment to paragraph 29, on, amongst other matters, "all the assurances already mentioned". Those assurances were given over a number of years, starting in 1981-82 when Mr Alan was 15, repeated in 1986 when he was 20, and consistently acted on, according to Mr Alan, up to the date of the alleged mutual wills in 1990 as evidence in support of the allegation of the existence of the mutual wills. It might be that that evidence could, as the judge said in paragraph 34, be given in a "general" way as part of "general" background, as he envisages, but I do not read the judge as saying that he will positively exclude any particular aspects of the evidence on which Mr Alan wishes to rely.
16. It seems, as I have said, that the judge envisages at any rate some of the evidence will be given by Mr Alan twice on two separate occasions if he does not win on the wills issues. As it seems to me, this is as a recipe for difficulty, if not potential disaster. It is almost inevitable that the evidence will be somewhat different on the two occasions, and any judge may find himself seriously inhibited in a second trial by findings made in the first trial even if it turns out that the evidence given in the second trial is different. To my mind it would be far more satisfactory for all the evidence to be given on one occasion, even if that does mean, as the judge expected, that the trial would last as long as seven-and-a-half days.
17. For those reasons it seems to me that there is serious doubt, to put it no higher, as to the wisdom of the order for a split trial made by the judge.
18. Mr Troup makes four points in his argument today. First, he says that, as originally pleaded, there was no relevant overlap between proprietary estoppel and the allegations of mutual wills. But it seems to me that even on the original pleading there was overlap unless the judge was proposing to exclude evidence which is intended to be given pursuant to paragraph 26 of the defence. Any application to exclude such evidence will only give rise to yet more interlocutory skirmishing of a kind which this court must deprecate.
19. Mr Troup's second point was that, even in the light of the amendment, the measure of overlap, albeit that it exists, is limited in scope. But even Mr Troup accepts that there is overlap now the amendment has been made, and in my view that overlap is not as limited as Mr Troup would have us believe, because it extends back to 1981 in the way I have attempted to describe.
20. Mr Troup's third point is this: the judge built in a safety valve to his decision, saying that his decision could be reviewed if there was an amendment and after witness statements had been served. Mr Troup submits that this court should not interfere with the judge's case management decision but let the process takes its course, such process possibly resulting in a revocation of the order that the judge has made. It does not seem to me that it would be at all satisfactory for this court to leave the matter in that way. It is far better that any doubts about the judge's order should be resolved now, and indeed the fact that he himself plainly had doubts about it and envisaged the possibility of it being revisited only encourages one to wonder if the order was the right order in the first place.
21. Mr Troup's fourth point was that the first three of the issues that I have described had no overlap with the allegations of proprietary estoppels (that is, the issue of testamentary capacity, the issue of lack of knowledge and approval of the will and the issue of rectification) and by Respondent's Notice he submits that, if this court is minded to interfere with the judge's order at all, then the interference should be limited to excising the mutual wills allegation from the order for preliminary issues, and the trial of those three issues should take place, leaving the mutual wills and the proprietary estoppel claim to be determined later.
22. That course, one might accept, would give rise to less obvious overlap, but even in the case of testamentary capacity, as Mr Warner submitted, there will be, or may be, a need for the courts to be aware of the status of Mr Alan as being someone who, in the view of the testatrix, could reasonably be expected to be the object of her bounty, and he cites the case of Banks v Goodfellow (1870) LR 5 QB 549. Mr Troup submits that one only needs to appreciate the existence of persons with a claim on the testatrix's bounty, not the weight of such claims. But it is very difficult to confine evidence as to existence without explaining to the court how weighty it is, and although the medical evidence may be more important (it may even be decisive in relation to testamentary capacity), one cannot be certain there will be no overlap at all.
23. The same, in my judgment, applies to the issue of want of knowledge or approval. One relevant matter there is whether there has been a radical departure from long-adhered-to arrangements or indeed from assurances given in the past. Mr Troup says that he admits there is a radical departure and the focus will be on what was said or done at the time. That may well be so, but it is very difficult, as it seems to me, for a judge to start excluding evidence as to the past, and even if the first three issues were hived off, I for my part could not be certain that there still will not be a considerable overlap.
24. Of course, Mr Troup reminded us that this court only very occasionally interferes with what are case management decisions. Naturally one accepts that. But this court has now fairly considerable experience of how sometimes unsatisfactory preliminary issues can be, if they are not truly entirely separate and independent issues from other issues which are left to be tried later. In a case where, with respect to the judge, the reasons for ordering a split trial are not entirely logical, and it is clear that he himself had some doubt about the matter, it is, in my view, much better for this court to interfere at the present stage rather than later to moan about the unsatisfactory position which may have developed at the trial or after two trials.
25. Mr Warner cited to us the fairly recent case of Rossetti Marketing Ltd & Anor v Diamond Sofa Company Ltd [2012] EWCA Civ 1021, where this court did exactly that: it bemoaned the fact that preliminary issues had been ordered. It is worth citing in conclusion the Master of the Rolls' judgment at paragraph 74:

"The Judge rightly said that, 'having heard the case', he was 'not at all persuaded that the determination of preliminary issues was the right approach to handling the litigation' ... As he immediately went on to say, it 'would have been far better to have had a trial to resolve all the issues'. Whatever the Judge decided on the preliminary issues, and irrespective of who won on those issues, it should have been obvious to those agreeing the preliminary issues that a trial would not necessarily be avoided. Further, it should also have been appreciated that it would be very likely that [Mr C] and [Mr W], both of whom gave fairly extensive evidence before Cranston J, would have to give evidence at such a trial, and that at least some of that evidence would duplicate the evidence on the preliminary issues."

26. That was only one unsatisfactory feature of the preliminary issues in that case, but those words of the Master of the Rolls, which perhaps I should not have described as bemoaning exactly, nevertheless do show that it may be wise for this court to interfere even with a case management decision if it is persuaded that at the end of the day there is a serious risk that it will overcomplicate matters when the issues could all have been encompassed in what the parties appear to agree and the judge agreed would be a seven-and-a-half day trial.
27. So, for those reasons, I would allow this appeal.

Lord Justice Rimer:

28. I agree.

Lord Justice Mummery:

29. I agree, and I would just echo the words of Longmore LJ that this court only rarely interferes with case management decisions, but it must do so where they are clearly wrong. In this case, I am satisfied that the judge was clearly wrong in granting a stay on the application that Mr Troup had made of the proprietary estoppel claim pending the resolution of other claims, which he said should be determined as preliminary issues. Those are the claims my Lord has referred to affecting the validity of the will, the claim to rectify the will and the claim based on the doctrine of mutual wills.
30. The more one went into the facts of this case, and both counsel did, mainly by reference to the pleadings, it became clear that all these various issues are part of an unfortunate family dispute which is being brought to court to resolve one main issue, and that is the inheritance of the farm. I think it would be virtually impossible to conduct separate trials relating to the will issues and the proprietary estoppel issues. As has been pointed out and accepted by Mr Troup, there is partial overlap. I think there may be more than partial overlap. It would be almost impossible to conduct a second trial without backtracking over matters that had been dealt with in the first trial of preliminary issues.
31. For all the reasons given by Longmore LJ, I am satisfied that this appeal must be allowed. This is one of those rare cases in which a case management decision is reversed by this court.
32. I would finally comment that the effect of this application, which succeeded below, is not in fact to save time and money at all. Time has been spent before the judge and then on the appeal. Most of today has been spent on this appeal. The case is no further forward than it was when the application was made for the stay of the proprietary estoppel claim. I think it would have been better if this application had never been made.
33. So, for all those reasons, we will allow the appeal.

Order: Appeal allowed; cross-appeal dismissed