In the Estate of Langton, deceased
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE DANCKWERTS,LORD JUSTICE DIPLOCK |
| Judgment Date | 24 January 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J0124-4 |
| Court | Court of Appeal |
| Date | 24 January 1964 |
Re Langton Decd.
[1964] EWCA Civ J0124-4
Lord Justice Willmer
Lord Justice Danckwerts and
Lord Justice Diplock
In The Supreme Court of Judicature
Court of Appeal
The Appellant (Plaintiff) appeared in person.
MR P. ROSSDALE (instructed by Messrs. Baker & Nairns) appeared on behalf of the Respondents (Defendants).
Over the past six years the Appellant, Mr Philip Sidney Langton, has initiated, or attempted to initiate, five separate actions against the Defendants, or some of them, in relation to the estate of the deceased, who was the aunt of theAppellant and who died on the 29th September, 1952.
(1) By the first action (1957 L. No. 1159) the Appellant, suing in his personal capacity, prayed for the revocation of probate in common form of a Will dated the 27th February, 1949, and a Codicil dated the 17th October, 1951, and for probate in solemn form of an alleged will said to be dated on or about the 17th August, 1906. He alleged that by this will the deceased bequeathed her whole estate to her sister, Lucy Gertrude Langton, for life, and, upon the decease of the latter, one fifth of her estate to her brother Guy Langton absolutely, and the residue equally between the Appellant and his sister Hilda Langton. This action was tried by Mr Justice Rees on the 11th, 12th and 17th July, 1962, when the learned Judge pronounced in favour of the Will of the 27th February, 1949, and the Codicil of the 17th October, 1951, and condemned the Appellant in the costs of the action. The Appellant appealed to this Court, but his appeal was dismissed on the 5th November, 1962. Subsequently the Appellant petitioned for leave to appeal to the House of Lords, but his petition was dismissed.
(2) In the second action (1961 L. No. 1498) the Appellant claimed as administrator of the estate of his mother, Christina Mouat Langton, who died intestate on the 4th September, 1945. He alleged that his mother was the sole beneficiary entitled under the will of his father, Guy Langton, who had died on the 14th March, 1940. In this action the Appellant again prayed for the revocation of probate of the deceased's Will of the 27th February, 1949, and of the Codicil of the 17th October, 1951, and again sought to set up the alleged will of the 17th August, 1906, whereby he alleged that one fifth of the estate of the deceased was bequeathed to his father, Guy Langton. The Defendants applied to dismiss this action as frivolous and vexatious, and obtained an order to dismiss it from Mr Justice Scarman,affirming the previous order of the Registrar, on the 18th July, 1963. This order is the subject of the first of two appeals now before us.
(3) By the third action (1963 L. No. 1647) the Appellant seeks to set aside the Judgment of Mr Justice Rees in the first action on the ground that it was obtained through fraud on the part of the Defendants. I understand that this action is the subject of other proceedings in which the Defendants seek to have the action dismissed, and that they have already made an application for an order to this effect. But this is not before us on the hearing of the present appeals.
(4) By the fourth action (1963 L. No. 2965) the Appellant seeks to set aside the order of Mr Registrar Russell dismissing the third action – I know not on what ground. This action is not before us to-day.
(5) The Appellant now seeks to commence a fifth action, but on his applying at the principal Probate Registry for leave to issue a writ his application was referred by Mr Registrar Townley Millers for hearing by a Judge. The matter was heard on the 13th January, 1964, by Mr Justice Faulks, who refused leave to issue the writ, but granted leave to appeal from his order. This is the subject of the second appeal now before us. A copy of the proposed writ is before us, and from this it appears that the Appellant seeks to sue both in his personal capacity and in a fiduciary capacity as administrator of his mother's estate. The relief which he seeks, however, is substantially the same as that for which he prayed in the first and second actions, viz. revocation of the probate of the deceased's Will of the 27th February, 1949, and of the Codicil of the 17th October, 1951.
The parties to the second action and to the fifth (proposed) action are the same persons as were parties to thefirst action. Subject to the question whether the judgment of Mr Justice Rees in the first action can be set aside on the ground that it was obtained by fraud – which is the subject of the third and fourth actions – I have no doubt that the Appellant in his personal capacity is bound by that Judgment, and must be held to be estopped per rem judicatam from relitigating the same issue against the same parties. I do not think that it makes any difference that the writ in the second action was issued before the Judgment in the first action had been obtained. If the Appellant were suing in the same capacity, the further prosecution of the second action after judgment in the first had been obtained would still amount to an attempt to re-litigate the same issue against the same parties, and would be in violation of the maxim "Nemo debet bis vexari pro una et eadem causa". On this point I take the same view as that expressed by Mr Justice McNair, in Bell v. Holmes, (1956) 1 Weekly Law Reports, 1359.
The Appellant, has, however, contended that, since in the second action and in the fifth (proposed) action he seeks to sue in a different capacity, he is not in law the same person, and the parties to these actions are accordingly not the same as the parties to the first action. Consequently, he says, there can be no estoppel per rem judicatam and no ground on which these actions can be held to be frivolous or vexatious. In support of this contention he relies on Leggott v. Great Northern Railway Co., 1 Queen's Bench Division, 599, and Marginson v. Blackburn Borough Council, (1939) 2 King's Bench, 426. In the former case judgment in a previous action brought by the plaintiff under the Fatal Accidents Acts was held to be no bar to the second action brought by him as personal representative of the deceased for alleged loss to the estate of the deceased. In the latter case a second action brought by theplaintiff as personal representative for (a) loss to the estate of the deceased and (b) damages under the Fatal Accidents Acts was held not to be barred by the judgment in a previous action, in which in his personal capacity he had claimed damages.
On the other side it has been contended on behalf of the Defendants that the same considerations do not apply in a probate action where probate in solemn form has been decreed. The principle relied on is that any interested person who is cognisant of the proceedings, and has the opportunity to intervene, is bound by the result and cannot be allowed to re-open the matter. This principle goes back at least to the year 1814, when it was enunciated by Sir John Nicholl in Newell v. Weeks, 2 Phillimore, 224. The authorities were reviewed, and the principle was restated, by Sir Francis Jeune, President, in Young v. Holloway, (1895) Probate 87, at pages 89/90, as follows: "On the authorities, while it appears to me to be well-established that if a person who can himself intervene, and take part in proceedings in which a will is questioned, abstains from doing so, he is bound by them, though he be no party to them, it would seem that the reason for this rule is that such a person has the power to intervene. In the case of Newell v. Weeks, the leading case on the subject, one of the next of kin, who was fully cognizant of proceedings in which a will was contested by other next of kin, was held bound by the decision. But the ratio decidendi of the judgment of Sir John Nicholl is, I think, expressed in this passage: 'Spectators to the whole and privy to the whole, if they had been dissatisfied, they might have intervened at any moment of the proceedings. This right of intervention, coupled with their privity to the proceedings, is decisive to show that they can have sustained no prejudice by not having been before cited, and not having before given formal appearance. In the former cruse they had not only a right, but it was their duty to intervene if they meant not to abide by thedecision – their interests were directly affected: if the will had been set aside they would have established their claim. The lis pendens served as a public notice on which they were bound to act. This case was followed in Ratcliffe and Another v. Barnes, in which Sir Cresswell Cresswell said: 'The general principle, as I collect it, is this, that whore a party has had full notice,' and has had the opportunity of availing himself of the contest, he will be bound by the decision. That was not a mere dictum, but the express decision of a very learned Judge, Sir John Nicholl. In the case of Wytcherley v. Andrews, Lord a Penzance drew a distinction between a person being bound by the decision in a suit and by a compromise made between the parties to it, and in the course of his judgment said: 'There is a practice in this Court, by which any person having an interest may make himself a party to a suit by intervening, and it was because of the existence of that practice that the Judges of the Prerogative Court held that if a person, knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result, and not be allowed to reopen the case'".
The only decision cited to us in which the question has been directly raised as to the right of a party suing in the second action in a different capacity is that of Beardsley v. Beardsley, (1899) 1 Queen's Bench, 746. In that case the plaintiff in his capacity as heir-at-law of the deceased brought an action in the Queen's...
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