French v French & Anor

An application to the Court of Appeal for permission to appeal against a County Court judge’s refusal of permission to appeal from a District Judge is inadmissible under Access to Justice Act 1999, section 54 and CPR Practice Direction 52-006, paragraph 4.8. The Court of Appeal cannot make orders on matters that have not been considered or decided at first instance. Investigatory or disclosure orders require some evidence suggesting that relief may be appropriate; an assertion that such orders are needed to discover evidence is circular. Permission should be refused where proposed orders are misconceived, factually unsupported and have no real prospect of success.

The applicant, David Peter French, sought permission to appeal after his claim concerning the administration of his late father’s estate had been struck out by District Judge O’Leary in the County Court. He alleged that the respondent executors had concealed assets, falsified probate accounts and failed to disclose relevant information. The District Judge refused reinstatement and further orders on 29 August 2000. His Honour Judge Edwards QC refused permission to appeal on paper and after an oral renewal on 21 December 2000.

The applicant then applied to the Court of Appeal for permission to appeal against both decisions and also sought further orders concerning financial records, correspondence and the conduct of the executors. The central issues were whether the application was admissible and whether any proposed appeal or further order had a real prospect of success.

Applications dismissed. Lord Justice Mance dealt with both the application for permission to appeal and the proposed challenge to the costs order.

1. The application for permission to appeal against the County Court judge’s refusal of permission to appeal from the District Judge was inadmissible under Access to Justice Act 1999, section 54 and CPR Practice Direction 52-006, paragraph 4.8.
2. The proposed appeal had no merit. Complaints about procedure, representation and the earlier hearing did not retain material relevance after the Court of Appeal had reviewed the file and heard the applicant.
3. The material relied on to support an order against Merrill Lynch did not establish that the deceased had assets there. Diary references and a letter stating that information could be supplied to the executors or by court order proved nothing. There was no evidence that beneficially owned assets had escaped the ordinary administration of the estate, or that the executors were acting in bad faith.
4. The allegations concerning National Power dividends did not justify a finding of deliberate suppression or fraud. The correspondence showed that the dividends remained unclaimed pending probate and were later received by the executors.
5. The Court of Appeal could not make orders concerning matters that had not been considered or decided at first instance. In any event, the additional orders sought were palpably misconceived and lacked factual justification. Permission would have been refused because there was no real prospect of obtaining them successfully.
6. A request for orders to obtain evidence needed to prove alleged misconduct was circular. Before relief can be granted, the court must have some evidence suggesting that the relief may be appropriate. No such evidence existed here.

The applications, including the challenge to the assessed costs, were dismissed.

1. Court of Appeal (Civil Division): In [2001] EWCA Civ 584, Lord Justice Mance dismissed the applications for permission to appeal and the proposed challenge to costs.
2. Chester County Court: His Honour Judge Edwards QC refused permission to appeal on paper and after an oral renewal on 21 December 2000.
3. Chester County Court: District Judge O’Leary struck out the claim and on 29 August 2000 refused reinstatement and further orders.