Law reports

COSTS

Wills - probate action - factors applicable to award of costs

In re Good (deceased), Carapeto v Good: ChD (Mr Justice Rimer): 19 April 2002

The claimant was successful in an action to prove the will of the deceased by showing that the deceased knew and approved of its contents and by successfully defending an allegation made by the defendants that the will was induced by the undue influence of herself and her family.

On the question of costs, the defendants argued that the court should not make the normal order that the losing party pay the costs under the Civil Procedure Rules 1998 (CPR), rule 44.3 since it was reasonable for the defendants to raise the question of whether there had been any undue influence.

Vivian Chapman and Constance Mahoney (instructed by Furley Page, Canterbury) for the claimant; Michael Furness QC and Tiffany Scott (instructed by Oldham Rust Jobson, Stafford) for the defendants.

Held, finding partly in favour of the claimant, that when considering all the circumstances of the case under CPR, rule 44.3 a judge could take into account the principles established in Spiers v English [1907] P 122, namely that an alternative costs order might be made where the testator or those interested in the residue had been the cause of the litigation or if the circumstances led reasonably to an investigation; that although there were grounds for suspecting undue influence and the defendants had been entitled to test their case the claimant had suffered the unpleasantness of defending a charge of undue influence; and that, accordingly, the defendants should pay one half of the claimant's costs.

CRIMINAL

Complainant with Alzheimer's disease - competence as a witness - admissibility of video testimony

R v D: CA (Lord Justice Waller, Mr Justice Pitchers and Judge Crawford QC): 3 May 2002

The defendant was charged with one offence of rape and one of indecent assault against B, an 81-year-old woman suffering from Alzheimer's disease.

At a preparatory hearing the judge was asked to rule on the admissibility of B's video testimony.

The prosecution sought to rely on sections 23 and 26 of the Criminal Justice Act 1988.

In deciding whether B was a competent witness the judge took the test from section 53 of the Youth Justice and Criminal Evidence Act 1999 (even though it was not yet in force) which provided that a person was not competent to give evidence in criminal proceedings if it appeared to the court that he was not a person who was able to understand questions put to him as a witness and give answers to them which could be understood.

The judge viewed the video and concluded that B understood the questions and was able to provide answers.

Accordingly, he held that section 23 of the 1988 Act applied and that he should exercise his discretion in favour of admitting the video under section 26.

He granted permission to appeal against that ruling.

Lord Thomas QC and Adam Kane (instructed by Michael Lipman & Co) for the defendant; Peter Rook QC and Kim Jenkins (instructed by the Crown Prosecution Service, Wood Green) for the Crown.

Held, dismissing the appeal, that, prima facie, B had a right to have her complaint placed before a jury; that, in considering whether in the interests of justice B's video testimony ought to be admitted, the judge had applied the right test and had come to right conclusion; and that the defendant's rights would be protected as he would be able to call medical evidence to challenge B's capacity to remember, understand and say what had happened and through his counsel could also make the point that she could not be cross-examined.

INSOLVENCY

Remuneration of trustee in bankruptcy - third party paying bankrupt's debts - bankrupt having standing to apply to fix remuneration even where satisfaction of creditors' claims would leave no surplus

Peri v Engel: ChD (Mr Justice Ferris): 29 April 2002

A bankrupt applied to the court for orders that the court fix the trustee in bankruptcy's remuneration at a reasonable level pursuant to section 303 of the Insolvency Act 1986 and that his bankruptcy be annulled because a third party had agreed to supply the funds to meet his creditors' demands.

District Judge Bowman granted both applications.

The trustee appealed against the first order on the ground, among other things, that the former bankrupt could not show that the trustee's decision on remuneration had adversely affected his substantial interests, which was the condition precedent for standing under section 303, because such an interest could exist only if there were or might have been a surplus in the trustee's hands after satisfaction of all the debts.

Steven Thompson (instructed by Mark Johnson-Watts, Oxford) for the bankrupt; Raquel Agnello (instructed by Veale Wasbrough Lawyers, Bristol) for the trustee.

Held, dismissing the appeal, that, whether a bankrupt had shown that an act of the trustee had adversely affected his interests depended on the facts of the particular case; that, in the present context, where there was also an application for annulment on the basis that the bankrupt's debts were to be paid off, the level of the trustee's remuneration affected the amount which had to be paid before an annulment could be granted and could adversely affect the bankrupt if he had agreed to indemnify a third party who had put up the necessary funds or even if there were no formal obligation to the third party as the bankrupt would probably still feel under a moral obligation; but that section 303 was not an appropriate statutory footing under which to fix such remuneration which could only be done pursuant to section 363; and that, accordingly, the district judge's decision would be affirmed on that alternative statutory footing.

PRACTICE

Pleadings - striking out - inappropriate where developing area of jurisprudence

Partco Group Ltd and another v Wragg and another: CA (Dame Elizabeth Butler-Sloss P, Lords Justice Potter and Kay): 1 May 2002

The proceedings had arisen out of a 'friendly' take-over of the first claimant by the second claimant, UGC Ltd, and it was alleged that the defendants, who were executive directors of Partco, had failed either fraudulently or negligently to disclose a serious deterioration in Partco's financial circumstances.

The defendants applied, pursuant to CPR, order 3.4 and/or the inherent jurisdiction, to strike out those parts of the claim alleging breach of a duty of care owed personally by the defendants to UGC Ltd, on the grounds, among other things, that there was no adequate basis on which to found such an action.

The judge refused the application and the defendants appealed.

Iain Milligan QC, Timothy Howe and Patrick Goodall (instructed by Wragge & Co, Birmingham) for the defendants; Elizabeth Gloster QC and Ian Gatt (instructed by Clifford Chance) for the claimants.

Held, dismissing the appeal, that while the test and principles for striking out under CPR, rule 3.4(2)(a) were well established, the notes to that rule contained in Civil Procedure, vol 1 (Autumn 2001) adverted to the principle that it was not appropriate to strike out a claim in an area of developing jurisprudence; so that, since the nature and extent of duties of care owed personally by directors of a target company to a bidder company was such an area, it was important to preserve a degree of latitude in approaching the terms of the pleadings where it was reasonable to suppose that facts might emerge to assist a claimant to establish his cause of action in a 'fact-sensitive' area of law.