Anne Worby and Others v Jonathan Arnold Rosser
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE CHADWICK,LORD JUSTICE WARD,LORD JUSTICE NOURSE |
| Judgment Date | 28 May 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0528-10 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | No CHANI 1998/1232/3,LTA 98/5910/3 |
| Date | 28 May 1999 |
[1998] EWCA Civ J0917-2
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(MR JUSTICE HOLLAND)
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Nourse
Lord Justice Ward
LTA 98/5910/3
MR N ASPREY (Instructed by Messrs Lawrence Wood, Norwich NR1 1BG ) appeared on behalf of the Applicant.
The Respondent did not attend and was not represented.
Thursday 17 September 1998
This is an application by the plaintiffs for leave to appeal against the order made on 12th March 1998 by Holland J, sitting in the Chancery Division, whereby he dismissed their claims in the action and entered judgment for the defendant. The basis of that dismissal was the judge's determination under Order 14A that the defendant, a solicitor, did not owe any one or more of the plaintiffs any of the duties of care alleged in the statement of claim.
The circumstances in which the plaintiffs' claim has come to be made are fully set out in the judge's reserved judgment and need not for present purposes be repeated. The essence of the plaintiffs' case is set out in a paragraph which the judge read from the skeleton argument of their counsel, Mr Asprey, in the court below:
"The claim here is not made by a beneficiary under an intended will but by beneficiaries under an earlier will. (The Defendant) had assumed responsibility for a task, namely the consideration of a new will which he knew or ought to have known would affect (the Plaintiffs') interests under the 1983 will. In particular he knew or ought to have known that (the Plaintiffs) would incur the expense of a probate action if he failed to take reasonable steps to ensure that (Mr Worby) had the capacity to make a new will etc. He therefore owed them a duty of care to take reasonable steps to ensure that (Mr Worby) had that capacity etc."
The judge rejected the plaintiffs' case as inherently fallacious. In giving his reasons for refusing leave to appeal, he said that he did not accept that there was general professional interest in further consideration of the point by the Court of Appeal, nor that the particular interest of the plaintiffs justified leave. In refusing leave upon consideration of the documents, Aldous LJ said that the decision of the judge was correct and that the draft notice of appeal did not suggest to him that there was a real prospect of success on an appeal.
My initial reaction to the plaintiffs' case was that it could hardly be sustainable. But that might have been my initial reaction to the cases of those who later proved successful in Ross v Caunters [1980] Ch 297 and White v Jones [1995] 2 AC 207. Moreover, Mr Asprey has made much of the incremental approach which has been countenanced by the House of Lords in cases such as this; see Caparo Industries Plc v Dickman [1990] 2 AC 605 and White v Jones itself. He accepts that a successful outcome to the plaintiffs' case would require an extension of White v Jones, but submits that it is at least arguable that the extension ought to be made.
As his principal criticism of the judge's judgment, Mr Asprey submits that had the judge homed in on the fact that the defendant owed a duty of care to the deceased himself, then he would have been likely to conclude that he owed a duty to the plaintiffs as well.
Mr Asprey recognises that if the case came to trial there might also be questions of causation and remoteness, but those are questions with which we are not concerned at present because the preliminary issue determined under Order 14A was limited to the duty of care.
Mr Asprey has put in a full skeleton argument and has also addressed us briefly this morning. Having considered the skeleton argument and those submissions, I do not find myself able to say that an appeal in this case would have no real prospect of success. Moreover, the claim is clearly bona fide. It is of great importance to the plaintiffs. The costs of the probate action having been taxed at around £250,000 and the judge's judgment, although interlocutory for the purposes of leave to appeal, being in reality final, I think that the plaintiffs are entitled to have their case considered by this court. I would grant leave to appeal accordingly.
I agree.
Order: Leave to appeal granted. Appeal to be served and set down within 10 days. Costs of application to be costs in the appeal.
[1999] EWCA Civ J0528-10
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF MR JUSTICE HOLLAND
(Sitting as a Judge of the Chancery Division)
Royal Courts of Justice
Strand
London WC2
Lord Justice Peter Gibson
Lord Justice Ward
Lord Justice Chadwick
No CHANI 1998/1232/3
MR N ASPREY (Instructed by Penningtons of London) appeared on behalf of the Appellant
MR E BANNISTER QC and MR K ROWLEY (Instructed by Browne Jacobson of London) appeared on behalf of the Respondent
Lord Justice Chadwick will give the first judgment.
This is an appeal from the order made on 12th March 1998 by Mr Justice Holland, sitting as a judge of the Chancery Division, in proceedings brought by three beneficiaries under the will dated 28th March 1983 of the late Albert Edward Worby against a solicitor who prepared a later will which, after contested proceedings, was refused probate. The plaintiffs seek, in these proceedings, to recover from the solicitor the very substantial costs which they incurred in resisting probate of the later will. It is said that the solicitor owed a duty to them, as beneficiaries named in the 1983 will, to take care that the testator did not execute a later will in circumstances in which he lacked testamentary capacity and was subject to the malign influence of a third party. The claim may fairly be described as novel, perhaps startling. Mr Justice Holland held that it was ill-founded. The plaintiffs have obtained the leave of this court to appeal from that decision.
The second and third named appellants, Rachel and David Worby, are the children of the testator. The first named appellant, Anne Worby, is their mother. She was not married to the testator, although she took his name and they lived together as man and wife for many years. The three appellants, together with two children of the testator by a former marriage (who take no part in these proceedings), are the residuary beneficiaries under the 1983 will. Mrs Anne Worby and three others, of whom two have renounced probate, were named as executors in the 1983 will.
On 22nd September 1989 the testator executed a later will. That will had been prepared by the defendant, Mr Rosser, a solicitor practising on his own account at Burnham Market in Norfolk. The defendant was introduced to the testator by one Gian Sunder Tuli, who was the testator's accountant. It is said that the initiative for the new will came from Mr Tuli. The defendant and Mr Tuli were named as executors and trustees in the 1989 will. By clause 3 of that will the trustees were directed to transfer any of the testator's assets not already held by Bertram (East Anglia) Limited to that company. Bertram (East Anglia) Ltd ("BEAL") had been incorporated in 1988, on the advice of Mr Tuli. The 100 issued shares in the capital of BEAL were held as to 99 shares by the testator and as to the remaining one share in the name of the appellant, David Worby. By clause 4 of the 1989 will the testator's shares in BEAL were bequeathed to the trustees on trust to pay the income to Mrs Irene Head (with whom, it appears, the testator had formed a relationship), Mr Tuli, Mrs Anne Worby and the testator's four children in specified proportions. In particular, Mrs Head was to receive a proportion of income equal to 25 per cent and Mr Tuli was to receive a proportion equal to 26 per cent. The remaining 49 per cent was split between Mrs Anne Worby and the children, but with David Worby taking a 25 per cent share of the whole. On Mrs Head attaining the age of 65 years, the trustees were directed to distribute the shares in BEAL between seven named income beneficiaries in the same proportions. The effect of the 1989 will, in broad terms, was to reduce the share of the testator's estate which the appellants —that is to say, Mrs Anne Worby and her two children taken together —would enjoy under the 1983 will from about 72 per cent to 32 per cent; although David Worby's individual share in the estate was, if anything, slightly increased under the 1989 will.
The testator died on 18th November 1989, then aged 73 years. The defendant renounced probate of the 1989 will. Mr Tuli, as the remaining executor named in that will and one of the principal beneficiaries under it, commenced proceedings to have the 1989 will admitted to probate in solemn form. The defendants to those proceedings ("the probate proceedings") were Mrs Head —who made common cause with Mr Tuli in propounding the 1989 will —and Mrs Anne Worby and the four children, as the beneficiaries under the 1983 will. Mrs Anne Worby and her two children, Rachel and David sought proof of the 1983 will by way of counterclaim in the probate proceedings.
The probate proceedings came on for hearing in the autumn of 1993 before His Honour Judge Bromley QC in the Cambridge County Court....
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