Stoutt v Radford

Appellate courts will not interfere with trial-management decisions unless they are plainly outside the generous ambit within which reasonable judicial views may differ. A trial judge’s findings of fact based on seeing and hearing witnesses are especially difficult to challenge. Fresh evidence which could have been obtained before trial will rarely justify a rehearing, although procedural requirements may be relaxed for a litigant in person. Permission to appeal should be refused where the proposed challenge has no realistic prospect of overcoming those obstacles.

The claimant proved a will under which the deceased left most of her estate to her son and the remainder to the defendant, his half-sister. The defendant challenged the will as forged.

Shortly before trial, the defendant’s solicitors withdrew or sought to withdraw, and a proposed compromise was abandoned. The High Court judge allowed the defendant to proceed but gave her only overnight to prepare. After hearing the evidence, including handwriting evidence, the judge found the will genuine and duly executed.

The defendant sought permission to appeal, alleging procedural unfairness, inadequate preparation time, unsatisfactory legal advice and forgery. She also sought to adduce a further handwriting expert’s report. The central issues were whether the trial-management decision and factual findings were properly challengeable and whether the further evidence could realistically support a rehearing.

1. Application dismissed. The applicant had no realistic prospect of establishing that the High Court judge’s decision to allow only overnight preparation was plainly or blatantly wrong. Decisions concerning trial management fall within the judge’s discretionary ambit, and the Court of Appeal will not interfere merely because it might have adopted a different course.
2. The Court found no procedural irregularity capable of vitiating the proceedings. The applicant’s difficulties with her solicitors did not alter the applicable appellate threshold.
3. The challenge to the finding that the will was genuine was also hopeless. The trial judge had heard and observed the principal witness, accepted her as honest and accurate in the material respects, and assessed the discrepancies in her evidence. Findings of fact of that kind are virtually unassailable on appeal, particularly where they are supported by expert evidence.
4. Where evidence could have been obtained before trial but was not, the Court of Appeal very rarely permits the case to be reheard. Although the applicant was a litigant in person and the court overlooked that an earlier expert report had existed, the further report did not create a realistic prospect of success. It treated the deceased’s signature as likely to be genuine, while disputing the other witness’s signature without identifying who else had forged it.
5. The High Court had applied the balance of probabilities to the forgery allegation and concluded that the will was genuine and duly executed. The application for permission to appeal was therefore dismissed.

• Court of Appeal (Civil Division): Permission to appeal from the High Court’s decision was refused. The order was: application for permission to appeal dismissed.
• High Court of Justice, Chancery Division: The judge permitted the defendant to withdraw from the proposed compromise and proceed to trial, then found the will genuine and duly executed.