Fear v Fear

On an application for permission to appeal, the Court of Appeal should not substitute its own assessment of witness credibility for a trial judge’s findings based on witnesses whom the judge heard and saw. Where proposed new evidence was available at trial and would not materially undermine the witness whose evidence supported the decision, it does not provide a real prospect of success. An appellate court should not determine issues such as testamentary capacity or want of righteousness when those issues were neither pleaded nor tried. The application was refused.

The claimant challenged the probate of his grandmother’s 1990 will, which left the residuary estate to her son. He alleged that the will had not been duly executed and was forged. The trial judge preferred the evidence of one attesting witness over that of another and found that the will had been duly executed.

The claimant sought permission to appeal, relying on the asserted error in the credibility assessment and on further evidence said to demonstrate a history of forgery by the respondent. He also relied on evidence concerning testamentary capacity, although capacity and want of righteousness had not been pleaded or tried. The central issue was whether the proposed appeal had a real prospect of success.

1. Application refused. The proposed appeal was bound to fail. The Court of Appeal would effectively have had to substitute its assessment of the credibility of Mrs Eyre and Mrs Phillips for the trial judge’s assessment.
2. Where a finding of fact depends on evidence from witnesses whom the trial judge heard and saw, the appellate court, having only the transcripts, will not ordinarily reverse that finding. There was no real prospect that it would do so here.
3. The proposed further evidence was available at trial. Evidence directed to damaging the respondent’s credibility would not materially assist because the trial judge had not relied on his evidence. The decisive issue was Mrs Eyre’s credibility, and the proposed evidence did not cast doubt on hers.
4. The claim had been advanced solely on due execution. The trial judge had not been asked to determine testamentary capacity or want of righteousness and had rightly made no findings on them. A general practitioner’s statement about capacity, untested by cross-examination and unsupported by a trial finding, did not provide a proper basis for appellate determination.
5. The order of 6 December 2000 was left undisturbed and permission to appeal was refused.

• High Court, Chancery Division: On 6 December 2000, Mr Robert Englehart QC, sitting as a Deputy Judge, found that the disputed will had been duly executed.
• Court of Appeal (Civil Division): Permission to appeal was refused.