Re Saxton, decd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL |
| Judgment Date | 07 June 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J0607-2 |
| Court | Court of Appeal |
| Date | 07 June 1962 |
In the Matter of the Estate of Norah Saxton dec.
[1962] EWCA Civ J0607-2
The Master of The Rolls (Lord Denning)
Lord Justice Harmrn and
Lord Justice Russell
In The Supreme Court of Judicature
Court of Appeal
From Mr. Justice Wilberforce
MR LEOLIN PRICE (instructed by Messrs Bowles & Co.) appeared as Counsel for the Appellants.
MR S. W. TEMPLEMAN (Instructed by Messrs Good, Good & Co.) appeared as Counsel for the Respondents.
THE MASTER OF THE ROLES; The plaintiffs in this case are beneficiaries under the will of Mrs Saxton who died on the 20th December, 1958. At the time of her death there was property standing in her name worth some thousands of pounds. The plaintiffs claim that this property forms part of her estate and that it should be distributed to them as the beneficiaries under her will. But Mrs Saxton's husband claims that the property, although It stood in his wife's name, really belonged to him. He has told the executor that It belongs to him. So the beneficiaries bring this action to establish their claim. They bring It against Mrs Saxton's husband and the executor.
Originally the defence simply asserted that there was an oral agreement between Mrs Saxton and her husband that this property, although in her name, belonged to him. Later on the defence was amended and it was asserted that there was a written agreement dated 5th August, 1949, and signed by Mrs Saxton, whereby Mrs Saxton agreed to hold the property on behalf of her husband. So It Is plain that the husband Is now putting forward this written agreement as an answer to the claim.
The plaintiffs challenge the authenticity of the document. They say the signature on it is not the signature of Mrs Saxton at all. So the issue In the case is clear. It is whether the signature on the document is a forgery. The document is in the possession of the defendants. The plaintiffs have already inspected it. Their handwriting expert has already examined the handwriting and compared it with genuine signatures of Mrs Saxton. But he wishes to go further. He wishes to take special photographs and also to make special scientific experiments. In particular the plaintiffs' expert wants to take infra-red photographs of the document: and in addition he wants to make special micro-chemical tests so as to determine the age of the ink and the chemical characteristics of it. The defendants did not agree to his doing this. So the plaintiffs applied to the Judge for an order under Order 50, rule 3,asking to be allowed to do it. The Judge granted the application. In these days scientific experiments of such a kind may be very helpful. The evidence, which is not challenged, shows that this chemical experiment can be made on a very tiny piece of the document. It would affect a piece which was only the size of a pin's head. The rest of it would not be affected in the slightest. There would be no damage or risk of damage to the document itself. In these circumstances the Judge, as it seems to me, quite properly ordered that the plaintiffs' expert should be entitled to take the photographs and perform those scientific tests on the document.
But now the question arises: What terms can the Judge impose? In this particular case he has imposed this condition which I will read, "that the plaintiffs do disclose to the defendants any report baaed on the tests made" by the expert. In other words, when their expert has examined the document, made his tests and submitted his report, the plaintiffs are to show that report to the other side. It is quite plain that that report will be his proof of evidence. So the Judge has ordered that his report, his proof, shall be disclosed to the other side. He has not ordered that reports of experts shall be exchanged. He has only ordered the plaintiffs to show their report to the other side.
The Judge seems to have been influenced by the fact that the plaintiffs were legally aided: and I must say that I sympathies with his point of view. It seems very hard on the defendants that the plaintiffs should be able to conduct their case at the expense of the State, including the cost of employing a handwriting expert to make highly skilled scientific tests: and yet not disclose the result to the defendants. For it means that the defendants, in order to meet the case, will have to employ a handwriting expert of their own, who will also have to make scientific tests, all at great expense, which they will have little or no chance of recovering from their legally aided opponents.
Yet the legislature has told us we must ignore this aspect of the case. The Courts must disregard the fact that the plaintiffs are legally aided and must exercise their discretion in the way in which it would be exercised if they were not legally aided. This is made clear by Section 1(7)(b) of the Legal Aid and Advice Act, 1949, which says that the rights conferred on a person receiving legal aid "shall not affect the rights or liabilities of other parties to the proceedings or the principles on which the discretion of any Court or Tribunal Is normally exercised".
So I ask myself this question: If the plaintiffs were not legally aided, how would the discretion of the Court be normally exercised in such a case as this? Let me first mention the court expert so as to put him on one side. If either party had...
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