The Gazette 1958-61

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,

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.)