Joshi & Ors v Mahida

Permission to appeal should be refused where the proposed grounds disclose no arguable error and the lower court’s decision is logical, legally correct and supported by the evidence. A later appeal cannot reopen an earlier, unappealed decision on the validity of a will, particularly where any challenge is years out of time. Section 20(1)(a) of the Administration of Justice Act 1982 permits rectification for a clerical error causing a will to fail to carry out the testator’s intentions. Contemporaneous evidence and the will’s other provisions justified correcting an erroneous description of the deceased’s half share.

Mr Mahida’s 2002 will purported to give the respondents one half of his share in a commercial property. Another clause directed the sale of his share and excluded Mrs Mahida from any interest in it. The High Court Chancery Division, Mr Jonathan Gaunt QC, ordered rectification on 8 March 2013 under section 20(1)(a) of the Administration of Justice Act 1982, finding that the wording resulted from a clerical error.

Mrs Mahida sought permission to appeal, alleging lack of a fair trial, infringement of her rights and judicial bias. She also sought to challenge an earlier 2010 decision upholding the will’s validity, although that decision was not before the court. The central issues were whether there was an arguable challenge to the rectification order and whether the earlier validity ruling could be reopened.

The Court of Appeal dismissed Mrs Mahida’s renewed application for permission to appeal. It also directed that transcripts of both judgments be provided to her.

1. Rectification. The lower court’s decision was logical, legally correct and firmly based on the evidence. The solicitor’s contemporaneous attendance notes and clause 4 of the 2002 will demonstrated that Mr Mahida intended his half share in the property to pass to the respondents and that his wife was to have no interest in it. The wording describing the gift was therefore an inadvertent clerical error within section 20(1)(a) of the Administration of Justice Act 1982.
2. Fair hearing. Mrs Mahida had filed a defence and counterclaim, acknowledged service and knew that she was involved in the litigation. She gave no adequate explanation for failing to attend the rectification hearing. Her complaint that she had not received notice therefore disclosed no legitimate ground of challenge.
3. Bias and earlier decision. The allegation of judicial bias had no evidential foundation. The 2010 decision upholding the validity of the 2002 will was not under appeal. Any application for permission to appeal against it would have been years out of time, and the need for finality in litigation prevented the court from reopening that determination.
4. Disposition. Nothing said orally by Mrs Mahida or Mr Nicholls altered the court’s conclusion that the rectification judgment could not be challenged. The renewed application for permission to appeal was dismissed, and the appeal was dismissed.

• Court of Appeal (Civil Division) — In [2013] EWCA Civ 1327, dismissed the renewed application for permission to appeal and directed that transcripts be provided to Mrs Mahida.
• High Court, Chancery Division — Mr Jonathan Gaunt QC ordered rectification of the 2002 will on 8 March 2013.
• High Court, Chancery Division — On 3 December 2010, the court pronounced in solemn form for the 2002 will, rejecting challenges based on lack of capacity and lack of knowledge and approval.