Fox v Pettigrew

An appellate court rarely interferes with case-management decisions, but should do so where the decision is clearly wrong or creates a serious risk of procedural overcomplication. A split trial is unsuitable where the issues are not truly separate and independent, evidence overlaps, or witnesses may have to give evidence twice. The court should consider the risk of constrained or inconsistent findings and whether a preliminary hearing will avoid a later trial. This applies even where apparently distinct issues, such as testamentary capacity and knowledge and approval, may require evidence about the same family arrangements and assurances. A single trial may therefore be preferable despite being longer.

The probate claim concerned the validity of a will made by Edith Jewell. Alan Jewell challenged it on grounds including testamentary capacity, knowledge and approval, rectification and mutual wills, and also brought a proprietary estoppel counterclaim. The High Court ordered the will-related claims to be tried as preliminary issues and stayed the proprietary estoppel claim. The defendant appealed, contending that the issues and evidence substantially overlapped. The central question was whether the claims could properly be separated into successive trials.

The Court of Appeal unanimously allowed the appeal and dismissed the cross-appeal.

1. Appellate intervention. The court ordinarily interferes only rarely with case-management decisions. It must nevertheless intervene where the decision is clearly wrong. A serious risk that the chosen procedure will overcomplicate the litigation, duplicate evidence or create difficulties at a later hearing may justify intervention before trial.
2. Preliminary issues. A split trial is appropriate only where the preliminary issues are truly separate and independent from the matters left for later determination. The court should examine the practical evidential overlap, not merely the labels attached to the causes of action. Requiring a witness to give evidence twice creates a risk that the evidence will differ and that findings at the first trial will inhibit the second.
3. Application. The alleged assurances supporting the proprietary estoppel claim also formed part of the alleged mutual-wills case. Evidence concerning the family arrangements could therefore overlap substantially. Even the issues of testamentary capacity and knowledge and approval might require evidence about the claimant’s status as a potential object of the testatrix’s bounty, past arrangements and assurances. Evidence could not confidently be confined to separate hearings.
4. The reasoning in Rossetti Marketing Ltd & Anor v Diamond Sofa Company Ltd [2012] EWCA Civ 1021 supported intervention where a preliminary hearing would probably be followed by a further trial involving duplicated evidence. The High Court’s order was therefore set aside in substance, so that the issues were not divided into the proposed preliminary and later trials.

• Court of Appeal (Civil Division): [2013] EWCA Civ 1152. Appeal allowed and cross-appeal dismissed.
• High Court of Justice, Chancery Division: HHJ McCahill QC ordered the will-related claims to be tried as preliminary issues and stayed the proprietary estoppel claim.