Re Cutcliffe's Estate.; Le Duc v Veness
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON,LORD JUSTICE ORMEROD |
| Judgment Date | 11 November 1958 |
| Judgment citation (vLex) | [1958] EWCA Civ J1111-1 |
| Court | Court of Appeal |
| Date | 11 November 1958 |
In The Estate of Edmund Perrin Cutcliffe Deceased
[1958] EWCA Civ J1111-1
Lord Justice Hodson
Lord Justice Morris and
Lord Justice Ormerod.
In The Supreme Court of Judicature
Court of Appeal
Probate
MR C. LEWIS HAWSER (instructed by Messrs Manches & Co.) appeared on behalf of the Appellants, Defendants below.
MR VICTOR WILLIAMS (instructed by Messrs Francis Taylor & Fryzer) appeared on behalf of the Respondent, Plaintiff below.
This is an appeal from a judgment of Mr Justice Collingwood given on the 21st May, 1958. Notice of Appeal was given against the judgment, but has not been pursued except as to costs.
The action was a probate action in which the Plaintiff was named. Mrs Le Due, a widow, who was seeking to propound the Will of a testator, Edmund Perrin Cutcliffe, dated 31st January, 1955.
The Defendants, Albert Edward Veness and Maureen Beatrice Elizabeth Veness, were father and daughter who were interested under a Will of an earlier date, the 23rd August, 1954, both as executors and as beneficiaries.
The appeal being as to costs only, it is necessary to state what the position is. First of all, the leave of the learned Judge was given, but, nevertheless, orders as to costs are made in the exercise of discretion and are not readily reviewed unless the Court is satisfied that there has been a real error.
So far as any rule of practice is concerned as to costs in probate actions, it is well to remember the wise words of Sir James Wilde in Mitchell v. Gard. 3 Swabey & Tristram, page 275, at page 277, where he said: "These questions of costs are addressed to the discretion of the Court. It is hardly in the nature of discretion that its exercise should be adjusted by exact rule. No positive regulation could be established that would bear the strain put upon it by the justice or hardship of particular instances. But, where all is not possible, something may yet be done. By acknowledged method and general classification, the suitor may in some measure be enabled to estimate the prospect before him and see the penalties under which he launches into litigation. To this extent it is the duty of the Court, so far as may be, to assist him". It is very important to bear in mind those words when dealing with authorities which purport to lay down general principles upon which the exercise of discretion as to costs in these cases are considered.
The most convenient case in which to find the principles upon which the Probate Court exercises its discretion as to costs is Spiers v. English, 1907 Probate, page 122. The headnote sets out the principle very clearly in this way: "The two main principles which should guide the Court in determining that costs in a probate suit are not to follow the event are, firstly, where the testator or those interested in the residue have been the cause of the litigation; and, secondly, if the circumstances lead reasonably to an investigation in regard to a propounded document. In this latter case the costs may be left to be borne by those who incurred them; in the former, the costs of unsuccessfully opposing probate may be ordered to be paid out or the estate. Neither of those principles, which, however, are not exhaustive, justifies a plea of undue influence unless there were reasonable grounds for putting it forward".
I do not think it necessary to refer to the facts of that case save to say that the plaintiff, who was a nephew and one of the next of kin of Charlotte Spiers, alleged that a Will of 1905 was not duly executed and that the deceased did not know and approve of the contents thereof and that the purported execution was obtained by the undue influence of the defendant. The Jury found for the defendant on all the issues, and the Court pronounced for the Will. The plaintiff – and this is the point which is relevant – asked for costs out of the estate, or, alternatively, that the Court should direct each party should pay his own costs. The learned Judge came to the conclusion that he did not think that the plaintiff had shown any ground on which he ought to order that the costs of the plaintiff should be paid out of the estate, and, therefore, would not interfere with the ordinary rule that the costs follow the event. Sir Gorell Barnes, the President, was there referring to the rule that the loser pays as the ordinary rule. In approaching that conclusion he stated the principles which are set out in the headnote and was affected by the fact, that, although there was an onus upon the defendant to show that the testatrix knew and approved of the contents of her Will, the plea of undue influence ought never to have been put forward unless the party raising that plea had reasonable grounds on which to support it. In that situation the order which he made was the ordinary order that costs follow the event, which indeed was the ordinary order which the learned Judge made in this case.
Before leaving Spiers v. English. I should say it was cited in this Court in Wild v. Plant. 1926 Probate, page 139, apparently with approval, and, so far as I know, that statement of principle as a useful guide to judges who have to exercise their discretion in matters of costs in probate actions has been consistently followed since 1907.
The case as put before this Court was that the learned judge was in error, in that he did not, at any rate in part, relieve the Defendants from the burden of costs, because it is said that it was the fault of the testator that this litigation had been brought about; and, if not the fault of the testator, it was the fault of the beneficiary, namely, Mrs Le Due, the residuary legatee. Of course, if either of those qualities were to attach to this case the judge would be expected, in accordance with the usual practice, to allow the Defendants' costs out of the estate, at any rate so far as the issue of knowledge and approval was concerned, although it is admitted that it would be proper to penalise the Defendants because they had put forward a plea of ubdue influence which had failed.
I do not propose to deal with the facts of this case at any length. Indeed, we have not been asked to look at the whole of the evidence. The history of the matter is that the testator, who was 64, was living in a house 9, Shirley Road, Bedford Park. In that house there had lived with him for many years the Plaintiff, Mrs Le Due, who was his stepdaughter, because he had married her mother in 1910. The mother died in 1941, and the Plaintiff retained with the testator in the house looking after him continuously from 1941 to 1954. As from June, 1952, Mr and Mrs Veness, that is the Defendant and his wife, were living upstairs in a flat paying £3 a week rent
The testator was not only old, but was ill and wanted looking after. The Plaintiff, his stepdaughter, was a woman who, according to the evidence, was nearly blind, and she looked after the testator with no great pleasure on her part or even apparent gratitude on his part, and there were often quarrels heard by the Venesses between the. stepdaughter and the testator. In June, 1954, there was a quarrel between them which immediately preceded the Plaintiff leaving the house and going to hospital or to a home for the blind, because her eyesight had very nearly failed, and she has never been back since.
To complete the history of the matter, the testator himself went into hospitalon 20th December, 1954, came out on 11th January, 1955, and went in again a day or two before he died on 24th January, 1955. He made his first Will in August, 1954, in favour of the Venesses. For that purpose, he called in a solicitor, a Mr Bull, who saw him and was able to take instructions for the Will and had a conversation with him about his relations and about his stepdaughter, the present Plaintiff. On the 23rd August that Will was executed by the testator in the presence of Mr Bull, who was one witness, and a Dr. Winder, who was called as a witness in the case, was the other witness to the Will. The effect of the Will was to leave the property, consisting in the main of a leasehold house, to trustees for the stepdaughter, the trustees to grant the first floor flat to Mr Veness and his wife at a nominal rent. There was Some evidence that, while the deceased was in hospital for the first time between 20th December and 11th January (which evidence is recorded in the judgment) the Plaintiff visited him there, and on one occasion the Plaintiff was accompanied by a man, and that man spoke to the sister in the hospital and asked her if she was prepared to witness a Will. There is no evidence as to what the contents of any document which may have been existing at that time were. The sister did not give any evidence about it, and nothing further is known of that.
The next event I need mention is recorded in the attendances of Mr Bull on 19th January, 1955. He attended Mr Cutcliffe at 9, Shirley Road, and it is shown that he had been sent for because the Client was concerned about his affairs and wished to know if they were in order. The note says: "His relations (not blood relations) had been pestering him in hospital and since he had been home. He said they were a lot of blasted scoundrels and be was determined that whatever they did they would get nothing from him. He asked me to tell him how he bad left his affairs. He was perfectly coherent and understood what I said but his memory was not too good. I explained to him the will he had made on 23.8. 1954 and that he had left everything to Mr Veness's a daughter. He smiled and nodded and asked if he could rely on that because that was what he wanted and he was worried about what those relatives who had been pestering him of late had been doing. I told him not to worry and that his affairs were in order as he required. He asked if the relatives could...
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