Ward & Anor v Ward

An appellate court should not interfere with a trial judge’s assessment of conflicting witness evidence where the judge had the advantage of seeing and hearing the witnesses and no proper basis for intervention is shown. A compromise negotiated by legal representatives is binding where it was made with the client’s express authority. The position differs where counsel acts contrary to express instructions known to the other side and allowing the compromise to stand would cause grave injustice. In contentious probate proceedings, the court may give effect to a compromise which leaves probate of the will undisturbed but adjusts the distribution of the estate.

The applicant was executor and residuary beneficiary under a 1997 will. Proceedings brought by other beneficiaries sought to challenge that will and establish an earlier will. Shortly before trial, the parties’ legal representatives agreed terms compromising the proceedings. The applicant later denied authorising or signing the compromise.

Ferris J preferred the solicitor’s evidence, found that the applicant had signed the relevant documents and held that the compromise was binding. He also held that paragraph 12.2 of the Practice Direction (Contentious Probate Proceedings), issued under CPR 49, did not prevent the court giving effect to the agreement. The applicant renewed his application for permission to appeal.

1. Application refused. There was no realistic prospect of successfully challenging Ferris J’s finding that the applicant had expressly concurred in the compromise.
2. The issue depended on the conflicting evidence of the applicant and his solicitor. Ferris J assessed that evidence after seeing and hearing the witnesses. The applicant identified no proper basis on which an appellate court, lacking that advantage, could interfere with his conclusion.
3. Marsden v Marsden [1972] 2 All ER 1162 was distinguishable. In that case the compromise was made contrary to the wife’s express instructions, those instructions were known to her counsel, and the compromise was set aside because grave injustice would result. Here, on the facts found, the compromise was made on the applicant’s express instructions, evidenced by his signatures.
4. Paragraph 12.2 of the Practice Direction (Contentious Probate Proceedings) did not prevent the court from enforcing the compromise. The agreement did not require the court to pronounce for or against either will. It left probate of the 1997 will undisturbed and adjusted the distribution of assets under it.
5. The renewed application for permission to appeal was therefore refused.

• Court of Appeal (Civil Division): The renewed application for permission to appeal from Ferris J’s order was refused.
• High Court, Chancery Division: Ferris J found that a binding compromise had been concluded with the applicant’s express concurrence and held that paragraph 12.2 of the Practice Direction (Contentious Probate Proceedings) did not prevent the court giving effect to it.