Parks v Clout

On a second appeal, permission is granted where the proposed appeal raises an arguable point of principle or practice of general importance. In probate proceedings, the exception to the usual costs rule leaves costs within the court’s discretion; it does not create an entitlement to avoid costs.

It is arguable that due execution of a will may be proved by inference from circumstantial evidence. A court should not impose an absolute rule that such execution can never be established in that way. Where the evidence is capable of supporting such an inference, its sufficiency may properly be left to the trial judge.

The claimant challenged the dismissal of his contentious probate claim concerning the estate of his late sister. He alleged that she had made joint wills and relied on hearsay, an alleged admission by the surviving husband, testamentary intentions and alleged inaccuracies concerning the estate’s value.

Master Bowles granted summary judgment under Part 24 of the Civil Procedure Rules and dismissed the claim. A deputy High Court judge dismissed the claimant’s appeal. The claimant sought permission for a second appeal on both the substantive issue and costs. The central issue was whether the proposed substantive appeal raised an important point of principle or practice, including whether due execution could be established by circumstantial inference.

1. Permission threshold. Section 55(1) of the Access to Justice Act 1999 and CPR rule 52.13 applied because this was a proposed second appeal. Permission could be granted only if the appeal raised an important point of principle or practice, or there was another compelling reason for the Court of Appeal to hear it.
2. Substantive issue. The Master and deputy judge had concluded that the material could not realistically establish a valid will, relying on the approach associated with Atkinson v Morris [1897] PD 40 CA and the survival of its rationale after the hearsay rule was abolished in civil proceedings by the Civil Evidence Act 1995. However, it was at least arguable that they had set too high an obstacle if they treated due execution as incapable of proof by inference from circumstantial evidence.
3. If such proof by inference is legally possible, the evidence relied on in this case was at least arguably sufficient to require assessment by the trial judge. That arguable point involved a principle of general importance and justified permission on the substantive issue.
4. Costs. CPR rule 44.3(3)(b) provides that the general rule requiring the unsuccessful party to pay the successful party’s costs does not apply to probate proceedings. It nevertheless leaves the allocation of costs to the court’s discretion. No basis existed for a separate appeal against the costs orders.
5. Permission to appeal was granted on the substantive issue but refused in relation to the costs orders.

• High Court, Chancery Division: Master Bowles granted summary judgment under Part 24, dismissed the claim and ordered costs against the claimant.
• High Court appeal: A deputy High Court judge dismissed the claimant’s appeal and confirmed the costs order.
• Court of Appeal (Civil Division): Permission for a second appeal was granted on the substantive issue and refused as to costs.