Kenny v Isaacs & Ors

An appellate court will order a retrial only where the trial process caused prejudice sufficiently serious to make the judgment unjust. Dissatisfaction with the conduct of a party’s case, a decision to act without legal representation, or a failure to call available evidence will not ordinarily suffice, particularly where no timely application was made to adjourn or adduce further evidence and the proposed evidence would probably not affect the result.

A judge’s discretionary costs order must take a Calderbank offer into account, but the offer does not govern the discretion. An appellate court will not interfere where the order falls within the proper ambit of that discretion.

The appeal arose from a probate action concerning four wills made by the testatrix during the 18 months before her death. Mr Justice Hart pronounced in favour of the first will after finding that the later wills had been materially influenced by the testatrix’s delusions. He also made a discretionary costs order, requiring Mr Rice-Hunt to pay Mrs Kenny’s costs only from 15 January 2000.

Mr Rice-Hunt appealed on the basis that changes in representation, the neutral position adopted by the executor, and the absence of additional witnesses had severely prejudiced his presentation and caused a mistrial. Mrs Kenny cross-appealed on costs, relying on an earlier Calderbank offer. The central issues were whether a retrial was required and whether the costs discretion had been wrongly exercised.

1. The appeal was dismissed. The complaints concerned Mr Isaacs, his lawyers and Mr Rice-Hunt’s own representation, rather than any improper conduct by the trial judge. No evidence had been filed explaining how Mr Rice-Hunt had been taken by surprise. The alleged misleading impression and deception were therefore not established.
2. Mr Rice-Hunt had been informed of the conflict between the solicitors’ clients and knew that separate representation was required. He remained entitled to seek other solicitors but chose to act in person. The available skeleton argument also made clear that Mr Isaacs would adopt a neutral stance after placing the relevant evidence before the court.
3. The proposed additional witnesses were unlikely to affect the result. The material issue was whether the contents of the later wills had been materially influenced by the testatrix’s delusions. Evidence that she could hold normal conversations would not necessarily resolve that issue. No application had been made at trial for an adjournment or permission to call further evidence. The alleged prejudice did not amount to a mistrial.
4. The court accepted the testamentary-capacity test in Banks v Goodfellow [1870] 5 QB 549 at 565, which had been applied below. The appeal did not provide a basis for disturbing the factual conclusions reached under that test.
5. The cross-appeal was dismissed. A Calderbank offer must be considered in the exercise of the costs discretion, but it influences rather than governs that discretion. The judge had given careful reasons for selecting 15 January 2000 and his order was within the proper ambit of his discretion. Lord Justice Sedley and Mr Justice Astill agreed with Lord Justice Peter Gibson.

The appeal was dismissed with costs assessed at £8,000. The cross-appeal was dismissed with costs assessed at £100.

• Court of Appeal (Civil Division): Kenny v Isaacs & Ors [2001] EWCA Civ 1118. Appeal against the probate and costs orders dismissed; cross-appeal on costs dismissed.
• High Court: Mr Justice Hart pronounced in favour of the first will after rejecting the validity of the second, third and fourth wills, and ordered that Mr Rice-Hunt pay Mrs Kenny’s costs from 15 January 2000.