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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Preston v Barber [2001] EWCA Civ 974 (5 June 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/974.html Cite as: [2001] EWCA Civ 974

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL AND AN EXTENSION OF TIME

		Royal Courts of Justice Strand London WC2 Tuesday, 5th June 2001

1. LORD JUSTICE ROBERT WALKER: This is an application by Mr James Preston (who has appeared in person with the assistance of MrsPreston) seeking permission to appeal from an order of Mr Justice Gibbs made on 20th December 2000 when he was sitting at Manchester in the Queen's Bench Division. Mr Justice Gibbs' order dismissed Mr Preston's appeal from an order of District Judge Gaunt made in Altrincham County Court on 27th June 2000 awarding Mr Preston the sum of £25.86 without interest or costs against his sister, Mrs Edna Barber.
2. Before coming to the merits of the case it must be said at once that there was a regrettable error or series of errors made by the Court Service as to the proper route for an appeal from the district judge. This arose from what were then recent changes in the civil justice system and doubts which were intended to be resolved by the decision of this court in Tanfern Ltd v Cameron Macdonald [2000] 1 WLR 1311: see especially paragraph 24 of the judgment in relation to appeals in small claims cases. However, the rules have since been changed with effect from 2nd October 2000. Those errors at a time of transition are most regrettable and I express sincere regret to Mr Preston that they were made. If he wishes to take that aspect of the matter further he must take it up with the Lord Chancellor's Department. The errors, regrettable though they are, cannot amount to a ground of appeal which could assist him in this court.
3. The background to the application for permission to appeal is the will of Mr Preston's mother, Mrs Maud Preston, which unfortunately has given rise to bitterness and litigation out of all proportion to the value of her estate. As Mr Preston sees it, it is a matter of principle regardless of the sums involved.
4. The first relevant date is 9th August 1986 when the late Mrs Preston made her will. At that time she was fairly recently widowed. She was very elderly and had poor eyesight. There is some evidence of her being in a confused mental state. A medical report made almost exactly a year later referred to her condition then as being "more confused". Mr Preston believes, and no doubt correctly, that his mother's will was written on a printed form by her son-in-law, Mr Barber. The will gave five legacies of £100 each to named beneficiaries, all or most of whom were grandchildren. It gave the sum of £1,000 to Mrs Edna Barber. It contained different residuary bequests of "the money" which was given to Mr Preston and Mrs Barber equally and "the property" - whatever that meant - to Mrs Barber alone, and she was appointed executrix. Mrs Preston died on 9th July 1991 in a residential home where she had been cared for for about four years.
5. On 31st July 1991 Mr Preston entered a caveat so that his mother's will could not be proved in common form without notice to him. The caveat remained in place without being challenged for a considerable time. That must have made the administration of the estate more difficult.
6. It is clear that some money came to Mrs Barber without her having to obtain a grant. In particular, she obtained payment of a life policy issued by Prudential Assurance which produced a sum of £560 or thereabouts. It appears from Mrs Barber's account of the matter that having obtained a loan from her husband she was able, with the Prudential money, to discharge the bill for the funeral expenses on or about 8th August 1991.
7. The caveat remained in place for more than three years. It culminated in a hearing at the Probate Registry at Newcastle upon Tyne on 10th November 1994 when the registrar made an order which, in effect, presented Mr Preston with an ultimatum that he had 18 days in which to commence a probate action in the Chancery Division if he wished to challenge the validity of his mother's will. Otherwise it was to be admitted to probate. Mr Preston decided not to challenge the will. That was a decision which he had to make. I have no doubt that he took into account all sorts of proper considerations, including the damage to family feelings which might be caused and the likely costs of the probate action. Whatever his reasons he decided not to challenge the will, and the court must approach the matter on the basis that his mother's last will was duly admitted to probate. The caveat was removed, and about a month later on or about 27th December 1994 cheques for all the pecuniary legacies were paid. Mr Preston has a sense of grievance that he did not at that time receive a cheque. However, I am not prepared to infer that that was simply as a result of vindictiveness on the part of his sister or his brother-in-law since Mr Preston was in the position of a residuary beneficiary and not that of a pecuniary legatee.
8. Some months later - that is on or about 29th March 1995 - a cheque for £654.03 was lodged by Mrs Barber, who was by then resident in Scotland, with a Macclesfield solicitor called Mr Gaskill. Mr Preston lives at Knutsford which is about a 26-mile round trip from Macclesfield. There was then a most regrettable confrontation in which Mr Preston, no doubt understandably from his point of the view, declined to attend on Mr Gaskill at Macclesfield in order to receive a cheque which was, in his view, his entitlement and moreover his entitlement with interest. On 1st June 1995 he wrote to Mr Gaskill asking him to lodge it in a bank account belonging to Mr Preston and indicating that he was willing to sign an enclosed receipt. The form of receipt was not an open ended discharge but he recognised the possibility of Mr Preston having further claims. The outcome of this most regrettable episode was that the cheque lodged with Mr Gaskill lapsed, having been drawn more than six months before.
9. At about the same time or perhaps earlier Mr Preston had commenced proceedings against his sister, proceedings with the designating number AL 50598, claiming against her a sum of money which had been paid to her during his mother's lifetime. That claim was rejected at a hearing at Altrincham County Court on 20th May 1996 when Judge Hammond gave judgment for Mrs Barber. Mr Preston appealed. The matter ultimately ended in a consent order made in this court on 17th March 1999 with a view to the matter then going to alternative dispute resolution. It did go to alternative dispute resolution and eventually that aspect of the matter was settled more or less to Mr Preston's satisfaction.
10. In February 1999 Mr Preston had again returned a cheque for £654.03 to his sister. He returned it in a letter marked "without prejudice" because he took the view that they should negotiate for a more satisfactory settlement. That apparently did not occur and Mr Preston started a new set of proceedings in the county court, AL 901069. On 16th May 1999 those proceedings were allocated to the small claims track which is, under the new Civil Procedure Rules, intended to achieve the speedy and summary resolution of small disputes. It is a form of procedure which deliberately tries to cut down on technical and complicated procedures in order that the disposal of claims should not become disproportionately expensive in relation to the amount at stake.
11. Plainly, Mr and Mrs Preston have a sense of dissatisfaction with that procedure as being too summary. They feel that they did not have an opportunity of putting to the district judge all the points they would have wished to make. There is no doubt at all that they have devoted a great deal of time and effort to this matter and have produced admirably full documentation setting out their case. The difficulty may be to some extent that there was more documentation than the judge was able to deal with in the limited time available for dealing with this small claim.
12. On 10th August 1999 the district judge made an order for discovery in support of questions on the estate accounts which were to be raised by Mr Preston. On 27th June 2000, nearly a year later and after further applications relating to disclosure, the district judge made the order which has led to this application.
13. I have already indicated that Mr Preston has a strong and, I venture to say, an understandable sense of grievance about the course which events have taken. He has also, as I have already noted, with his wife prepared papers with great care and attention to detail. However, there is the major obstacle in his way, that this would be a second appeal. By Section 55 of the Access to Justice Act 1999 it is a statutory and mandatory requirement that the Court of Appeal should permit second appeals only if the appeal would raise an important point of principle or practice or for some other compelling reason. That is a very high test. Mr Justice Gibbs, in dismissing the first appeal, said:

"It is clear from District Judge Gaunt's carefully set out reasons for refusing interest and costs that he did have regard to the arguments put forward by both parties, both when he heard the matter in June and when the matter had been before him previously. That is clear from two parts of his reasons; first that he heard submissions from the parties and secondly that he found that the defendant had been acting unreasonably. Nothing that has been put forward today persuades me that Mr and Mrs Preston were prevented from having their case put forward, and nothing about the District Judge's reasons persuades me that there is the slightest ground for thinking that he failed to have regard to the arguments on the claimant's behalf. It has to be recalled that when it comes to matters of interest and costs, Judges have a very wide discretion as to how to approach the matter and what decision to make. The exercise of that discretion will only be interfered with on appeal if it is unreasonable or not based on correct principles. Having heard Mr and Mrs Preston, I am quite satisfied that the District Judge's approach was reasonable and soundly based."

14. For my part I would comment that it seems to me there may be some of the finer points of the case made by Mr and Mrs Preston of which the district judge may not have been fully aware. Nevertheless, it is undoubtedly true that the district judge has strong case management powers which he is required to use in order to limit the time and expense of hearings in the small claims court. It is also true that he has a wide discretion in relation to matters of interest and costs.
15. I am not persuaded that this proposed appeal meets the stringent test that Parliament has laid down for a second appeal. Therefore, while sympathising, as I do, with the deep distress which this matter has caused to Mr and Mrs Preston, I must refuse the application and hope that they will be able to put this regrettable incident behind them and devote their time to more productive matters.
Order: Application refused