Halliday v Shoesmith and Another

JurisdictionEngland & Wales
Judgment Date30 June 1992
Judgment citation (vLex)[1992] EWCA Civ J0630-8
CourtCourt of Appeal (Civil Division)
Docket Number92/0791
Date30 June 1992
Gordon Halliday
(1) Charles Victor Shoesmith
(2) Denis Sydney Mills

[1992] EWCA Civ J0630-8


Lord Justice Stocker


Lord Justice Beldam







Royal Courts of Justice

MR MICHAEL NIELD, instructed by Messrs Triggs Turner (Guildford), appeared for the Appellant (First Defendant).

MR MICHAEL SOOLE, instructed by Messrs Hart Brown & Co. (Guildford), appeared for the Respondent (Plaintiff).


I will ask Lord Justice Beldam to give the first judgment.


The appellant, Mr Charles Victor Shoesmith, is the nephew of Mrs Ivy Sopp who died on 28th April 1987 in the Royal Surrey County Hospital at Guildford. Mrs Sopp was 84 years of age and had been a widow since 1975. Shortly after her husband's death she was diagnosed as suffering from cancer of the breast, but this was successfully treated, although in 1983 she had to undergo further treatment for cancer of the left hand.


Mrs Sopp had lived all her life in Ripley in Surrey and the appellant and his wife lived about a mile away. Since 1940, when the appellant had married, he had been on close and affectionate terms with Mrs Sopp and her husband. The appellant and his sister, Mrs Avery, were, after the death of Mrs Sopp's husband, her only close relatives. They and the appellant's wife used to visit her regularly. In 1982 Mrs Sopp made a will, leaving her estate to the appellant and his sister in equal shares. In August 1984 she made a further will in which the appellant was her sole beneficiary.


The respondent, Mr Gordon Halliday, was employed as a meter reader by the South Eastern Gas Board. It appears that by 1985 he had become a regular visitor to Mrs Sopp's house, staying with her for the evening once a week and occasionally doing shopping and other jobs for her. Eventually it appears he began to arrange for improvements in Mrs Sopp's house and in about October 1986 Mrs Sopp had the lock changed on her front door. She gave the respondent a key, but did not give one to the appellant. About this time Mrs Sopp's attitude changed towards the appellant and according to him she became irrationally suspicious of him, his wife and their grandchildren and even went so far as to accuse them of taking her money or not paying her money into her account.


In August 1986 Mrs Sopp gave instructions to Mr Mills, a solicitor, to draw up a will in which, apart from a bequest to a neighbour, the residue of her estate was to be left to the respondent. In due course, in December 1986, she executed a will in these terms. By 22nd April 1987 her health had deteriorated. She was admitted to hospital where six days later she died of heart failure and cancer of the stomach.


The appellant then learnt of the existence of the will executed the previous December.


In these proceedings the respondent asks the court to pronounce in favour of that will. The appellant contests that will and puts forward the will executed in 1984. The second defendant in the action is Mr Mills, named as executor, who so far as the proceedings are concerned adopts a neutral stance and has taken no part in the appeal.


The writ in the action was issued on 8th January 1988 and throughout 1988 there were pleadings between the parties, including requests for further and better particulars. In February 1989 an amended defence and counterclaim was served, but not validly served. It was re-served on 11th July 1989 by consent after a hearing before the master, and in September an amended defence to the counterclaim was served.


The action had been set down and came on for hearing before Mr Justice Mervyn Davies on 16th October 1990. The respondent's counsel, when preparing for trial, formed the view that he could apply to the judge to strike out the allegations in paragraphs 2, 3 and 4 of the amended defence and counterclaim on the grounds that they disclosed no reasonable cause of action or that they were vexatious and frivolous within the meaning of Order 18, rule 19. Accordingly, he gave notice to Mr Lloyd, who was then counsel instructed on behalf of the appellant, of his intention to make that application. When the case was called on before Mr Justice Mervyn Davies Mr Soole made his application and Mr Lloyd objected, but after the judge had asked him on two further occasions whether he was consenting to his dealing with the application, counsel did not persist in his objection. I put it in that way because unfortunately an issue has arisen between counsel whether the learned judge dealt with the respondent's application by consent or not.


The learned judge, clearly believing that counsel had consented, went on to consider the application and indeed considered evidence in a bundle of documents which had been prepared by the parties for use at the trial. In the course of the application the judge made extensive reference to the evidence contained in this bundle and to matters he had been told, and it is clear from his judgment that he was under the impression that counsel had agreed to his doing so. Included in the documents were two medical reports from doctors who had attended Mrs Sopp during her illness. However, in the course of his judgment the learned judge said:

"In this connection I was referred, without any objection being taken, to a medical report…"


And later:

"I asked Mr. Lloyd whether he would be calling any medical evidence and he informed me that he would not but that he would be seeking to put questions to any medical witnesses."


Basing himself on the medical report, the judge found that the suggestion that the deceased was not of sound mind, memory or understanding when she executed the will was wholly unjustified and said that the allegation was vexatious. Next he considered allegations in paragraph 3 of the amended defence concerning Mrs Sopp's knowledge of the contents of the will and he held that a plea of want of knowledge could not be sustained on those grounds and that therefore it was vexatious. Finally he turned to undue influence alleged in paragraph 4 and considered the grounds suggested were not "solid but so frail as to be not justified in a pleading". He therefore struck out paragraphs 2, 3 and 4 of the amended defence and counterclaim with the result that, since the appellant had admitted due execution, he held that the respondent succeeded in upholding the 1986 will.


In this appeal the first point argued by Mr Nield, who now appears for the appellant, is that the learned judge ought not to have entertained the application to strike out the allegations in the defence when the action was just about to be tried, the appellant had incurred all the costs of preparation for trial and it was accordingly too late for the respondent's application.


To this ground of appeal the respondent replied that Order 18, rule 19(1) gives to the court a discretion to strike out any pleading or anything in any pleading on the grounds stated in the rule at any stage of the proceedings. Thus the judge had a discretion in the case to entertain the application at any stage, even during the trial. Secondly the respondent says that in any event the appellant consented to the application being made and the learned judge referring to and taking account of the bundle of documents prepared for use at the trial.


As I have said, the learned judge clearly believed that counsel for the appellant had agreed, but in his judgment he merely said, "I acceded to Mr. Soole's application", and he went on:

"He [that is Mr Soole] then outlined the background to the case and made his submission in support of striking out. When Mr. Lloyd was addressing me, I enquired whether any part of the background as set out by Mr. Soole was unacceptable to Mr. Lloyd. While reserving his position, Mr. Lloyd did not, as I understand, specify as inaccurate any of the background matters set out by Mr. Soole."


It is unfortunately not clear what Mr Lloyd's reservations were and the judge does not record them. Counsel then appearing before the learned judge are unable to agree as to what was said. Unfortunately there is no shorthand note of the exchange between the learned judge and counsel. From the passages already quoted it is clear that counsel, Mr Lloyd, was not unreservedly agreeing to the factual background or to the medical evidence; although he did not intend to call medical evidence in support of his case, nevertheless he was not accepting the evidence for he stated that he would be seeking to cross-examine any medical witness.


In my view this court is not in a position to decide whether counsel did or did not agree to the course which the judge proposed to take and unless counsel clearly and unequivocally did agree it seems to me that the application was one which the judge should have approached with the greatest of caution at that stage and was an application to which he should have acceded only in the clearest and most obvious case. I have no doubt that the judge thought that, since the value of the estate was not large, it would be of benefit to all parties if he proceeded to hear the application on the basis of the evidence contained in the bundle of documents. But to strike out the appellant's pleading without giving him the opportunity, if he could, to support the allegations was a Draconian step to take if he did not consent to it, bearing in mind that it had apparently not occurred to the respondent's counsel until the eleventh hour to argue that the allegations in the amended defence disclosed no reasonable cause of action...

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