23 / 338
His Lordship ordered on Tuesday, ijth April, that
the case should be put into the Daily Cause List
again so that he might determine what order should
be made.
Mr. Justice Devlin said that this was the second
case in the current list in which the Crown Office
had not been notified of some order made in
chambers which had affected the course of an action.
In Kloss
v.
Curtis
(The Times,
i8th April), it had been
an order made by a Master taking the case out of
the term's list; and in the present case it was an
order under which the only remaining defendant
had got an order by which the action against him
had to be dismissed, for want of prosecution, under
Order 31, rule 21.
In each case the Crown Office
was not given the necessary information to enable
the cases to be taken out of the list; and in this case,
as in the last, the solicitors had blamed each^other,
each saying that it was the duty of the other to take
the necessary steps to inform the Crown Office.
The overriding rule in this matter was Order 36,
rule 29 (6), which made it abundantly plain that
it was the duty of both solicitors to take the necessary
steps. If solicitors wanted to be safe the proper
course was for each of them to make sure that the
Crown Office was notified.
What his Lordship had done
to-day was
to
investigate where the responsibility lay, for while it
was the duty of both, it might be that the degree
of responsibility and blame might fall more heavily
on one rather than the other.
In this case his Lordship thought that it fell on
the solicitors for the third defendant. It was they
who obtained the order dismissing the action. They
had argued that all that they had to do was to send
a copy of that order to the plaintiff and leave it to
him to bring to the attention of the Crown Office.
His Lordship did not accept that view at all. It was
the duty of the solicitors who obtained the order in
the first place to see that the action was removed from
the list. It might be that a plaintiff in person might
not have appeared at all or that time might be ex–
tremely short. The burden lay much more heavily
on the solicitors to the third defendant, and in this
case lay entirely on them.
Accordingly his Lordship would order that they
should pay personally the costs thrown away ;
those
costs would include bringing twelve gentlemen of
the jury to Court, for their time had been entirely
wasted, the costs of application, and the costs of
the proceedings when the case came into the list
since the plaintiff very properly in the circumstances,
thought it right to be represented by counsel so that
the position might be explained to his Lordship.
(Williamson
v.
British Boxing Board of Control
and others (1958), 2 All E.R. 228.)
Plaintiff's claim to be entitled to a share of deceased's
estate on an intestaty against defendant solicitor, who
was an executor and plea of undue influence rejected.
Lord Justice Hodson and Lord Justice Morris
in reserved judgments, Lord Justice Sellers dis–
senting, dismissed this appeal by Lieutenant-Colonel
Wintle, of Wrotham, Kent, from a judgment of
Mr. Justice Barnard and a verdict of a jury on 20th
May, 1957
(The Times,
2ist May), in favour of the
defendant, Mr. Frederick Nye, solicitor, of Brighton,
on the plaintiff's claim to be entitled as on an in–
testacy to a share in the estate of the late Miss
Kathleen Helen Wells, who died on 6th December,
1947, leaving an estate of gross value of some
£115,000.
The Court granted Colonel Wintle leave to appeal
to the House of Lords.
Lord Justice Hodson said that the burden lay on
the defendant, the deceased's solicitor, to establish
his case that the deceased knew and approved of
the contents of the will; in particular the bequests
to him had been vigorously contested. He drew up
the will and was the principal beneficiary under it.
There was no rule of law that he could not benefit.
The sole ground of appeal relied on was misdirection
of the jury by the Judge.
The Judge directed the jury correctly so far as
the law was concerned. He had reminded them of
the fact that it was for them to consider whether
they were able to accept Mr. Nye's testimony, and
that it was for him to remove the suspicion that
attached to the document.
The effect of the will was that one-third of the
estate should be used for beneficiaries named by the
testatrix who were to take after her sister Millie's
death Millie was to have an annuity of £500 a year
one-third was to provide for duties, and one-third
was to go to Mr. Nye, who was also to have the
residue remaining in the first two parts.
It was true that time was taken up in attacking
Colonel Wintle, whose attitude throughout had been
that he was determined to bring Mr. Nye and what
he regarded as an iniquitous will into Court. But
his interest in this matter and his motive in bringing
the action so as to force the will into Court were
wholly irrelevant, and the Judge, though referring
in unfavourable terms to some of Colonel Wintle's
activities in his campaign against Mr. Nye, had
pointed out in no uncertain terms that Colonel
Wintle's motive was irrelevant. If the evidence of
Mr. Nye was on a proper direction accepted by the
jury it was not open to this court to interfere with
the verdict.
Lord Justice Morris, concurring, said that there
could be no doubt that the circumstances of this case
were such as to excite the suspicion of the Court,