Robinson v Fernsby & Anor [2003] EWCA Civ 1820

Case No A3/2003/0280[2003] EWCA Civ 1820
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
MR JUSTICE BLACKBURNE
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19 th December 2003
Before
LORD JUSTICE PETER GIBSONLORD JUSTICE MAYLORD JUSTICE MANCE
Between
VENETIA ROBINSONAppellant(1) ROLAND FERNSBYRespondent(2) DUNCAN SCOTT-KILVERTRespondent
Charles Holbech (instructed by Arbeid & Golstein) for AppellantGerald Wilson (instructed by Hodge Jones & Allen) for RespondentHearing Hearing dates : 16 th/17 th October 2003
JUDGMENT

Introduction

[1]This is an appeal by the claimant, Venetia Robinson, against a decision and order of Blackburne J eventually handed down on 23rd January 2003.[2]The claimant is the daughter of Elizabeth Scott-Kilvert (“the deceased”) who died on 26th April 2000 aged 82. The deceased also had a son, Alexander Scott-Kilvert, who died on 31st March 1995. He had married Marie-Jose Scott-Kilvert (“Mme Scott-Kilvert”) in 1985. Their son, Duncan, was born on 5th February 1986. Duncan’s parents separated when he was 6 years old in 1992, Alexander having become an alcoholic and a drug addict. Divorce proceedings were under way at the time of his death when he was aged only 47. Duncan was aged 9 when his father died. He lives with his mother in Carcassonne in France. Duncan is the third defendant and the respondent to this appeal.[3]The claimant’s and Alexander’s father was Ian Scott-Kilvert. He and the deceased divorced in 1966. The deceased never remarried. Ian Scott-Kilvert died on 8th October 1989.[4]The deceased executed a will on 8th January 1991 and subsequently made five codicils. The fifth of these was executed on 5th November 1995, seven months after Alexander’s death. In the events which have occurred, by operation of the will and its five codicils, there were a number of pecuniary legacies and specific gifts amounting to about £12,000. The residue was divisible equally between the claimant and Duncan as Alexander’s only son. The effect of the fifth codicil was to defer the gift of Alexander’s half share of the residue to Duncan from the age of 18 to the age of 25.[5]In these proceedings, the claimant applied under section 1(1)(c) of the Inheritance (Provision for Family and Dependents) Act 1975 seeking reasonable financial provision out of her mother’s estate.[6]The claimant was born on 24th December 1958. She unfortunately had a difficult and somewhat disturbed childhood during which she suffered severely from anorexia. She was admitted to hospital for this on no less than eleven occasions between 1974 and 1982. She was in hospital for a large part of 1978. Between 1974 and 1976 her weight was as low as 4½ stone. Her anorexia continued into her 20’s. Her last hospital treatment was in 1988. The judge had medical evidence to the effect that her anorexia has been in remission since 1989.[7]As a result of her anorexia, her education was disrupted and she only attained four O Levels. It also resulted in her being unable to obtain any substantial employment. She has been and is unable to earn her own living. Since 1992, she has given occasional piano lessons to private pupils resulting in an annual income of about £650.[8]Until 1988, the claimant had lived at home with her mother. The deceased then lived largely by herself at Orchard House, Milden near Ipswich. In late August 1996, she was suddenly admitted to West Suffolk hospital. After six weeks in hospital, she moved to Friars Hall Nursing Home in Hadleigh, Suffolk, where she remained until her death on 26th April 2000.[9]On 24th September 1996, the deceased had executed an Enduring Power of Attorney appointing two solicitors as her attorneys. This was registered on 2nd January 1997. In August 1997, Orchard House was sold, the net proceeds of sale amounting to £205,306.25. On 1st May 1998, the attorneys applied to the Court of Protection for authority to make a lifetime gift to the claimant of these sale proceeds. There was a hearing of the application on 22nd September 1998, when the attorneys, the claimant, the deceased (through the Official Solicitor) and Duncan were all represented. After much debate, the court made an order authorising payment to the claimant of the £205,306.25 sale proceeds and, at the same time, the creation of a £25,000 settlement for Duncan. These payments were authorised on the basis that they were to be treated as advances made on account and in part payment of any share of the deceased’s property to which the claimant and Duncan might become entitled under any will or intestacy. The £205,306 was paid to the claimant in March 1999, just over a year before the deceased died.[10]The net value of the deceased’s undistributed estate as at 25th September 2002 was £361,507.47, consisting largely of cash on deposit. That amount was before deduction of administration expenses and any costs of these proceedings. Upon a working assumption for the moment that these and the payment of pecuniary legacies and gifts would reduce the residuary estate to £330,000, the operation of the will and its codicils would result in approximate additional payments to the claimant of £75,000 and to Duncan when he reaches the age of 25 of £255,000, taking account of the payments authorised by the Court of Protection. In these proceedings, the claimant applied for a greater proportion of the residuary estate.

The Inheritance (Provision for Family and Dependants) Act 1975

[11]Section 1 of the 1975 Act enables certain persons having a relationship with a person who dies domiciled in England and Wales to apply to the court for an order under section 2 of the Act on the ground that the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or a combination of these, is not such as to make reasonable financial provision for the applicant. By section 1(1)(c), one such potential applicant is a child of the deceased. “Reasonable financial provision” is defined in sub-section 2 in the case of all applicants other than the husband or wife of the deceased to mean:
“… such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.”
This is a more restrictive definition than that which applies where an application is made by a husband or wife – see section 1(2)(a).[12]Section 2 of the Act empowers the court, “if it is satisfied that the disposition of the deceased’s estate effected by his will … is not such as to make reasonable financial provision for the applicant”, to make a variety of orders including an order for the payment to the applicant out of the estate of a lump sum of a specified amount.[13]Section 3(1) of the Act provides:
“Where an application is made for an order under section 2 of this Act, the court shall, in determining whether the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is such as to make reasonable financial provision for the applicant and, if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its powers under that section, having regard to the following matters, that is to say – (a) the financial resources and financial needs which the applicant has, or is likely to have in the foreseeable future; (b) the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future; (c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future; (d) any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased; (e) the size and nature of the net estate of the deceased; (f) any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased; (g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.”
[14]Section 3(5) provides that, in considering the matters to which the court is required to have regard under section 3, the court has to take into account the facts as known to the court at the date of the hearing. Section 3(6) provides that, in considering any relevant person’s financial resources, the court has to take into account his or her earning capacity; and that in considering the financial needs of any such person, the court has to take into account his or her financial obligations and responsibilities.

The Law

[15]The judge considered these statutory provisions and discussed them in the light of a number of authorities. He said in paragraph 15 of his judgment:
“It follows therefore that, on every application under the Act, the court is required to consider two questions. First, has reasonable provision been made for the applicant? Second, if not, what financial provision should the applicant receive?”
He pointed out that, for applicants other than a husband or a wife, the purpose of the Act was limited to the provision of reasonable maintenance. It is not the purpose of the Act to provide legacies or rewards for meritorious conduct. It has to be shown, not simply that the deceased acted unreasonably, but that, looked at objectively, his disposition or lack of disposition produces an unreasonable result in that it does not make greater provision for the applicant’s maintenance. The judge referred here to the judgment of Oliver J in Re Coventry deceased [1984] CH. 461 at 472. He referred to the same judgment, at page 475, for the proposition that it is not sufficient for an applicant to establish necessitous circumstances which property of the deceased could alleviate. There must be established some sort of moral claim by the applicant to be maintained by the deceased or at the expense of the estate beyond the mere fact of a blood relationship. There must be some reason for saying that in the circumstances it is unreasonable that no or no greater provision was in fact made. The judge then referred to Re Hancock (deceased) [1998] 2 FLR 346 to the effect that, in the great majority of contested applications, the court is involved in a balancing exercise of the many factors to which section 3 of the Act requires the court to have regard. No particular fact has to be placed on one side of the scales or the other. Insofar as an adult child might have to establish a moral obligation or some other special reason, that only means that there must be some reason for the court to decide that the scales fall in favour of a conclusion that there has been a failure to make reasonable financial provision. The judge referred again to Re Coventry at page 485 for the proposition that what is proper maintenance must in all cases depend on all the facts and circumstances of the particular case. It must not be given too limited a meaning. It does not mean just enough to enable a person to get by. On the other hand, it does not mean anything which may be regarded as reasonably desirable for the applicant’s general benefit or welfare. As was said in a Canadian case Re Duranceau [1952] 3 DLR 714, the question is:
“Is the provision sufficient to enable the dependent to live neither luxuriously nor miserably, but decently and comfortably according to his or her station in life?”
[16]As Browne-Wilkinson J (as he then was) explained in Re Dennis (deceased) [1981] 2 All ER 140 at 145 to 146, “Maintenance connotes a provision that is to be made to meet recurring expenses, being expenses of living of an income nature.”[17]It is not suggested that the judge’s analysis of the relevant law was erroneous.[18]The judge then considered, in considerable detail, the claimant’s circumstances in paragraphs 23 to 57 of his judgment; and Duncan’s circumstances in paragraphs 58 to 79.

The claimant’s circumstances:

[19]I have already referred to the claimant’s anorexia in childhood and early adulthood. This has been in remission since about the time that she stopped living with her mother at Orchard House in 1988. But since then she has experienced a linked condition known as “Body Dysmorphic Syndrome”. This has manifested itself in an obsession with her appearance. It has resulted in her spending, in the years since about 1992, large sums of money on plastic surgery and other such treatments, and on clothing, hairdressing and such like.[20]Until she went into hospital in August 1996, the deceased paid for this surgery, spending a little over £8,000. Since then, the claimant has paid for the procedures herself, spending approximately £8,000 from her own savings. Her former GP, Dr. Speake (now retired), although sympathetic, was unable to defend these repeated surgical procedures when the clinical need for them was at best very questionable. He reported, however, that if the claimant was unable to fund continued surgery and clothing, she could relapse into anorexia again with its dire consequences. He had no experience of anyone over the age of 40 suffering from anorexia.[21]The deceased had supported the claimant financially until 1988. The support included paying for fairly frequent and expensive trips to London and some expensive holidays. In 1988, the deceased bought a house for the claimant in Hadleigh, but sold it when the claimant moved in to live with her boyfriend in a flat in Hadleigh Hall. Instead, her mother bought her a studio flat next door to her boyfriend’s flat. This flat cost £30,000. In 1992, her mother bought her the house in which she now lives with her husband at a cost of £87,000. The claimant sold the flat for £15,000, which she retained. The claimant’s present house is in need of some fairly ordinary maintenance and redecoration.[22]When the claimant was still living at Orchard House, the deceased had given her two adjoining cottages. These produced a rental income of about £250 per month. When the claimant left Orchard House, the deceased stopped providing her everyday maintenance, but the claimant received the rents from the cottages. Over the years, until the deceased went into hospital in August 1996, she gave the claimant a number of substantial gifts - £5,000 in the late 1980s, the cost of private hospital treatment and medical consultations, a car costing £5,000 in 1993, a piano costing £5,000, and so forth.

The judge summarised all this in paragraph 37 of his judgment as follows:

“The picture is of someone who lived very comfortably and was fully maintained by the deceased while still at Orchard House (until 1988) and who, when she left to set up on her own, was provided by the deceased with a house in which to live (ultimately, in 1992, after she married Neil Robinson, her present house at 8 The Maltings), a car to enable her to get around (together with the cost of learning to drive), a piano (together with piano lessons) to enable her to indulge her interest in music and also earn something from giving piano lessons herself and (until mid-1996) the cost of the claimant’s cosmetic surgery. But, apart from those occasional gifts, the deceased left the claimant to pay for her own ordinary day to day expenditure.”
The judge rejected suggestions that the deceased had continued to make regular payments towards the claimant’s upkeep after she had left Orchard House.[24]The claimant had the following sources of income after she ceased living with her mother:(a) the rent from the cottages (which she sold for £53,000 in 1997);(b) modest earnings from teaching the piano; and(c) income from her savings and from two settlements. The first settlement was established in 1960 by her paternal grandmother, Flora Scott-Kilvert. The second was established under the will of her late father. The Flora Scott-Kilvert settlement is now worth around £32,000. It produces an annual income of £800 gross. For some years the claimant has been the sole recipient of this income. The trustees have never exercised their absolute discretion to appoint capital or to appoint income to Duncan, who is the other potential beneficiary. In August 2000, the value of her father’s settlement was just over £¼m. By 31st July 2002, the value had fallen to £177,735. The trustees’ policy is to invest the settlement funds with a view to maximising income. The claimant received £12,000 gross annual income from this settlement as at the date of Blackburne J’s judgment.[25]At the time of the hearing before the Court of Protection in September 1998, the annual expenditure, ignoring tax, of the claimant and her husband was stated to be £17,200. Their income was stated to be £16,000 from the claimant’s various sources of income and Mr Robinson’s annual take home pay of £5,689.[26]Of the £205,306 which the claimant received under the authority of the Court of Protection in March 1999, she invested £165,000 and withdrew the balance. By August 2000, the invested part had risen slightly in value. She also had a PEP which, in August 2000 was valued at £8,812. She subsequently withdrew £23,000 to meet various expenditure including legal fees connected with these proceedings of just under £20,500. She had placed the invested part of the £205,306 in medium to high risk investments to produce greater income. They fared badly with the fall in the stock market, as did her PEP. As at 31st July 2002, the value of her investments net of withdrawals had fallen in value by roughly £80,000 to approximately £72,500. She has in addition a number of bank accounts. Between March 2000 and early September 2002, the aggregate sums deposited in those accounts had fallen by withdrawals from £63,864 to £14,140. She owns 8 The Maltings free of any mortgage which at the time of the judgment had a current value of between £180,000 and £185,000. She has a car, piano and harpsichord in addition to household and personal effects. There is also a bank account still in the joint names of herself and her brother Alexander which currently holds just over £2,000 but is not drawn upon.[27]The judge noted the claimant’s evidence that since November 2000 her income from various sources has amounted to approximately £19,000 per annum before tax. Ignoring any contribution from her husband, that was £3,000 per annum more than she was receiving at the time of the Court of Protection hearing in September 1998. But her expenditure had been running well ahead of her income. In the two years between March 2000 and March 2002, the excess expenditure was £14,225 and £11,600 respectively. The claimant estimated her current annual anticipated annual expenditure at about £31,670. That figure ignored expenditure on cosmetic surgery. The judge considered evidence from which he concluded that, ignoring expenditure on her cosmetic surgery, the claimant maintained an expensive lifestyle and had done so for some years. In paragraphs 51 to 56 of his judgment, the judge set out details of this (in the context) excessive expenditure.

Duncan’s circumstances

[28]Apart from occasional trips abroad, Duncan has lived all his life in France. He suffers from psychological problems. His need for psychiatric treatment goes back to his early childhood when his parents separated. He has been to a number of schools at which his results have been poor. He failed to obtain the basic school leaver’s qualification. He is eager to work with motor cars, and in September 2002, he started at yet another school, a college 200 miles from Carcassonne, which had an appropriate course. The college found that they could not cope with him and he returned to Carcassonne towards the end of September. He was immediately admitted to the adolescent psychiatric unit at the Department of Juvenile Psychiatry. The head of the department there had written a certificate dated 5th March 2002 which referred to Duncan’s “severe personality disorder”. He went on to say that for quite a few years Duncan had been severely affected by an obsessive compulsive disorder affecting strongly his psychological, emotional, social and family life and education - this despite several hospital admissions. A report following his admission to the Department in September 2002 spoke of his severe behavioural problems at school. His formal education is now at an end. There was then no date fixed for his discharge from hospital. The report stated that Duncan has a serious disorder of a psychotic nature which means that his future will be managed under the French legislation governing treatment of people with serious mental handicaps.

The judge summed the matter up in paragraph 66 of his judgment as follows:

“Neither Dr Cottin nor Dr Muyard has been available to be cross-examined as to their views of Duncan and their gloomy prognosis but the clear tenor of the evidence, supported by what Mrs McCloughan had to say, was that Duncan is suffering from severe behavioural problems which raise very serious doubts about his future welfare and ability to cope.”
[30]Mrs McCloughan, a qualified social worker, supplied a written report and gave evidence describing the living conditions in Carcassonne of Duncan and his mother. The judge described her as a most impressive witness. Her evidence about Duncan was regrettably as gloomy as that of the psychiatrists. He has no kind of even basic school qualification. There remains a hope that he may yet be apprenticed as a car mechanic, but for this he must obtain his discharge from hospital and an employer must be found who will take him on.[31]Mrs McCloughan described the house in Carcassonne where he and his mother live. It is very small and in many respects in poor condition, although it has a new roof. It is sparsely furnished, but “the house is kept very clean and tidy and Mme Scott-Kilvert seems to have gone to some trouble to make it attractive and homely”. She has carried out some repairs, including renewing the roof and installing central heating. This was made possible by the lifetime gift of £25,000 for Duncan’s benefit sanctioned by the Court of Protection in September 1998. The purchase of a car was also authorised but it turned out that the £25,000 was not sufficient. The judge said that notwithstanding the improvements, the house falls far below what most people would expect.[32]Duncan’s mother is barely able to make ends meet. She has an income of just over £300 a month – the French equivalent of Income Support – to maintain herself and Duncan. She has had no employment since about early 2000, before which she had some income from part time cleaning jobs. She has her own health problems, suffering from chronic depression for which she takes medication. She had recently been in hospital for a week following a breakdown.[33]Duncan has a contingent interest in a trust fund established by the deceased, his grandmother, on 27th April 1992 when she settled £100,000 on protective trusts for Alexander for life, and subject thereto, as to capital and income for Alexander’s children on attaining the age of 18, failing whom for the claimant. Assuming that Duncan survives to 18, he will become absolutely entitled to this fund. It was worth approximately £125,000 as at the date of Blackburne J’s judgment.[34]Duncan has a reversionary interest under the will trust established for the claimant’s benefit by her father. The fund is currently worth about £178,000. His interest is subject to his reaching the age of 18 and is liable to be defeated in what the judge regarded as the unlikely event that the claimant had children who attained the age of 18, or if and to the extent that the trustees apply capital in the claimant’s favour. The claimant is entitled to the income of this fund during her life. The judge found that she has a current life expectancy of 40 years.[35]Duncan owns the house in Carcassonne subject to what is effectively a right of occupation in it during her life by his mother. The property is currently worth approximately £40,000. He also has a savings account currently worth approximately £30,000 representing the sale proceeds of two properties which had belonged to his father. He will become entitled to that money when he reaches the age of 18, but has no right to receive any income from it in the meantime. The French court has power to authorise payments from it for Duncan’s benefit but only, as the judge understood, in exceptional circumstances.[36]Part of the money which Duncan’s mother now receives as the French equivalent of an income supplement is attributable to Duncan’s maintenance. This will cease when he reaches the age of 18. There is no unemployment benefit in France available to young persons between the ages of 18 and 26 who have not been in employment and who have not therefore made any contributions.

The judge summarised this in paragraph 78 of his judgment saying:

“Ignoring his share of the deceased’s estate and the value of the house in Carcassonne, Duncan, when he attains 18 in fourteen months time and assuming that the value of his savings account is not reduced below its present level, will own assets amounting to roughly £155,000. Apart from whatever income those assets may produce and anything that his mother can spare, he has no source of income. Assuming he outlives the claimant, he can expect to receive whatever remains of the funds which are subject to the trusts established for her benefit under the will of Ian Scott-Kilvert, but since the claimant’s current life expectancy is 40 years that is a very remote expectation. There is also the possibility that he may receive something under the Flora Scott-Kilvert trust (which would be by 2020 at the latest when that trust comes to an end), but since the funds are very small in amount and all income from them has been paid to the claimant in recent years it is difficult to attach any value to this possibility. It is impossible to estimate what his likely future financial needs will be. Even if he is able to overcome his current psychiatric problems and qualifies as a car mechanic (no other occupation is currently in prospect) he cannot expect (at current rates) to earn [no] more than £7,200 per annum.”

The deceased’s wishes

[38]The judge then considered evidence relating to the deceased’s own wishes as to how her estate should be dealt with, so far as she expressed them in the period after she went into hospital in August 1996.[39]By the end of 1996 she was incapable of managing her affairs. But during 1997 she made a considerable recovery and late that year she expressed a wish to make a new will. She also expressed a wish to make an immediate lifetime gift to the claimant from the net proceeds of sale of Orchard House. Consideration was given to applying to the court to cancel the registration of the Enduring Power of Attorney. Steps were taken to assess her mental capacity. The view of the medical experts was that, although she had regained her testamentary capacity, the management of her affairs under the Enduring Power of Attorney should remain in place. Her solicitor, Mr Day, saw her on 4th November 1997, when she said that she wanted to make a new will and particularly wanted to benefit her daughter, the claimant. She did not want to divide her estate equally between Duncan and her daughter. Her attorneys were willing to take steps to give effect to her wish to make over the sale proceeds of Orchard House to the claimant. But they were unwilling to take instructions for a new will. They considered that to do so might prejudice the application to the Court of Protection. They remained unconvinced as to her testamentary capacity. The deceased remained intent on making a new will, and Mr Day was to take instructions from her on another occasion without anyone else being present.[40]During the first part of 1998, doubts remained as to the deceased’s testamentary capacity. There were conflicting psychiatric reports in May and August 1998. In September 1998, the Court of Protection made the order to which I have already referred. The court declined to give directions for her testamentary capacity to be investigated.[41]The claimant was not happy with this outcome. She lodged an appeal contending that the payment of £205,306 should have been an outright gift to her and not an advance on account of any entitlement under her mother’s estate. She also wished to appeal against the court’s refusal to give directions for an investigation of her mother’s testamentary capacity. The deceased was also unhappy with the outcome and expressed her views in trenchant terms. The Official Solicitor and others reconsidered the position, and this led to the Court of Protection ordering a report on the deceased’s testamentary capacity. The claimant’s appeal against the order of the Court of Protection of September 1998 was stayed. In December 1998, a consultant psychiatrist concluded that the deceased was suffering from a mild degree of senile dementia such that she lacked the necessary capacity to manage her property, but nevertheless retained her testamentary capacity. He reported that the deceased had wanted the claimant to be her main beneficiary but that she was also prepared to leave some money to Duncan and to some other friends.[42]On 2nd February 1999, the claimant withdrew her appeal against the order of the Court of Protection. Three weeks later the Official Solicitor agreed to appoint a solicitor to take the deceased’s instructions. A Mr Welham was appointed to do so on 26th April 1999. He saw the deceased on 6th May 1999 when she told him that she wanted Duncan to receive less than half her residuary estate but looked to him for guidance as to how much she should give to her grandson. But Mr Welham had misgivings about the deceased’s testamentary capacity for reasons which the judge explains in paragraph 92 of his judgment. She expressed an intense dislike for her daughter-in-law (Duncan’s mother) and appeared to have a sudden dislike for Duncan, which the judge said was more puzzling than Mr Welham probably realised.[43]In paragraphs 93 to 102 of his judgment, the judge explained this puzzlement at some length. He described Duncan’s visits to England to see his grandmother going back to beyond 1991; Mme Scott-Kilvert’s resistance to the deceased seeing Duncan; an incident in April 1995 when Mme Scott-Kilvert pushed the deceased and broke a vase at her home in Suffolk for which she was prosecuted; and her unsuccessful resistance to an application by the deceased in the French court for staying access to Duncan. These and other matters culminated in a successful visit by Duncan and his mother to England to visit the deceased at the nursing home over two days in December 1998. The judge accepted evidence to the effect that the deceased had derived much pleasure from Duncan’s visit. The judge said in paragraph 103 of his judgment:
“All this makes inexplicable why, only five months later (at the time of their initial meeting on 6th May), the deceased … should suddenly have turned against her 13 year old grandson and should be accusing him of being “after her money”
. So far as the evidence goes, there is no rational explanation for this sudden change of affection.”[44]Some days later, Mr Welham sent a draft will to the deceased which provided at his suggestion that the residue of her estate should be divided 75% to the claimant and 25% to Duncan contingently on his reaching the age of 25. This was not a split which the deceased told him to make. At a meeting on 18th May 1999, he had increased misgivings as to her testamentary capacity. She had no recollection of his previous visit. She nevertheless told him that she wanted to leave the claimant 80% of her residual estate with the remaining 20% going to Duncan. A few days later, she wrote to Mr Welham saying that she only wanted to leave Duncan a “token £500”. Mr Welham noted that he found the clarity of these instructions surprising. He was in a dilemma. After considerable thought, he telephoned the Official Solicitor and then wrote a letter confirming his decision that he could not properly proceed with the making of a new will.

The judge said in paragraph 105 of his judgment:

“It is indeed puzzling that, within the space of just 3½ years, the deceased’s testamentary wishes for her only grandchild should apparently alter from a desire to give him half her residuary estate to a wish to leave him a token £500.”
[45]A further medical report dated 27th September 1999 cast further doubt on the deceased’s testamentary capacity and, in early October, the Official Solicitor reported that Mr Welham felt unable to prepare a new will on the ground of the deceased’s lack of capacity. The claimant then applied to the Court of Protection for directions, whose purpose was either to establish that the deceased had testamentary capacity so that she might make a new will, or that she did not. In the latter event, the claimant wanted to obtain evidence as to what her mother’s intentions had been when she did have capacity with a view to an application being made for a statutory will reflecting those intentions. As a result of a visit in mid-January 2000, a consultant psychiatrist reported that she now lacked testamentary capacity as a result of further deterioration of her mental health. He reported her as saying of her grandson Duncan, who was then aged just under 14 and whom she had last seen some 19 months earlier that he was “… a greedy young man like his French mother.” The psychiatrist’s view as to the deceased’s testamentary capacity accorded with that of her general practitioner.[46]On 7th April 2000, the claimant made a further application to the Court of Protection seeking the execution of a statutory will on behalf of the deceased giving herself 80% of the deceased’s residuary estate and Duncan 20% contingently on reaching the age of 25. An expedited hearing was fixed for early May, but the deceased died before the hearing took place.[47]Having considered counsels’ submissions, the judge considered the relevance of the deceased’s wishes. He considered a number of reported cases in which the court has had regard, as a relevant matter under section 3(1)(g) of the 1975 Act, to the deceased’s testamentary intentions or to promises to leave particular property to an applicant, but where the intentions or promises have not found expression in the deceased’s will. Those cases did not, however, lead to the court awarding financial provision for an applicant which went beyond what was reasonably required for his or her maintenance. The judge had difficulty in drawing any conclusions helpful to the claimant from what had happened. It was true that, at the time when she appeared to have had testamentary capacity, the deceased wanted to treat the claimant more favourably than Duncan. But by May 1999, when Mr Welham raised with her what the division of her estate should be, her testamentary capacity was very much in doubt and Mr Welham felt unable to proceed. The judge might have added, as he had related earlier in his judgment, that the deceased’s expressed hostility to Duncan was not easy to explain other than as a product of senile dementia.

The draft and final judgments

[48]On 17th December 2002, the judge delivered to the parties’ lawyers a draft judgment awarding the claimant further provision out of the deceased’s estate of £60,000. The front page of the draft judgment contained the standard notice to the effect that it was a draft of the judgment to be handed down on 19th December 2002; that it was confidential to counsel and solicitors until shortly before it was given; that the court was likely to wish to hand down its judgment in an approved final form; and that counsel should therefore submit any list of typing corrections and other obvious errors in writing to the judge’s clerk by 12 noon on 18th December, so that changes could be incorporated, if the judge accepted them, in the handed down judgment.[49]On 18th December 2002, Mr Wilson, counsel for Duncan, wrote in apologetic terms to the judge, asking him to disregard the letter if he considered that it advanced new submissions. Mr Wilson asserted that the judge’s reasoning in the draft judgment did not expressly apply:
“… the 2-stage test required under the Act namely: (i) was the provision under the will reasonable? (ii) if not, what provision should be made?” (i) was the provision under the will reasonable? (ii) if not, what provision should be made?”
[50]Mr Wilson maintained that the judgment appeared to miss out the first stage. It was only after determining that the provision was unreasonable that the court might substitute its own view. He attached an extract from Rayden & Jackson on Divorce, 17th Edition, paragraph 28.7, which spoke of the two stage process.[51]In the light of Mr Wilson’s letter, the judge did not hand down the draft judgment on 19th December 2002. He withdrew the draft and invited counsel on both sides to submit brief written submissions on the point which Mr Wilson had raised. He wrote that the submissions should not seek to reopen any of his findings of fact, nor his conclusions on the claimant’s reasonable maintenance requirement and the means available to her to meet that requirement. Counsel duly exchanged and provided to the judge further written submissions. Mr Wilson submitted that the income available to the claimant, as found by the judge in his draft judgment, did not fall below the minimum required to meet the claimant’s reasonable maintenance requirements. He submitted that the deceased by her will had done more than enough to meet her obligations to the claimant under the Act. Mr Holbech, on behalf of the claimant, submitted that Mr Wilson was implicitly seeking to reopen the judge’s conclusions on the issue of maintenance. Nevertheless, he submitted that fuller consideration could be given in the judgment to the first limb of the two stage test under the 1975 Act. He suggested that the correct first question was posed, but not directly answered. He made further submissions encouraging the judge to clarify or add to other parts of his draft conclusions. He did not make any submission to the explicit effect that it was not open to the judge to reconsider his reasons or conclusions. He told us, however, that his expectation was that the judge might tighten up his reasoning in order to reach the same conclusion as he had expressed in the draft judgment. Inferentially, he was encouraging a judgment which might be less amenable to an appeal.[52]On about 21st January 2003, the judge provided the parties’ lawyers with a draft of a revised judgment to be handed down on 23rd January. The notice on the face page was no doubt the same as on the previous occasion. The draft revised judgment reached a different conclusion from that in the first draft. The judge in the second draft did not consider that the claimant had established a sufficient basis for disturbing the equal division by the deceased of her estate and dismissed her claim. On 22nd January 2003, Mr Holbech wrote protesting that the draft judgment ought not to have been revised so as to produce a radically different result, representing for the claimant the difference between absolute disaster and relative success. Mr Holbech suggested that the judge’s revised conclusion did not even derive from the further submissions of Mr Wilson.[53]Notwithstanding Mr Holbech’s letter, the judge duly handed down judgment on 23rd January 2003 in the form of the revised second draft dismissing the claimant’s claim. The judge himself gave permission to appeal. On 1st July 2003, the judge made orders as to costs, which included that the claimant should pay Duncan’s costs of the action on the standard basis. The first draft judgment:[54]In the first draft judgment circulated on the 17th December 2002, the judge reached the conclusion there stated in summary as follows. It was accepted that, given the claimant’s circumstances, the deceased had a moral or familial obligation to make financial provision for her maintenance. The question was whether, in all the circumstances, not least the very substantial financial provision made for the claimant from time to time, the disposition of the deceased’s estate failed to do so. “What then is the claimant’s reasonable maintenance requirements?” It was accepted that many of the things on which the claimant chose to spend her money could not be included as part of her reasonable maintenance expenditure. It could not be right simply to ignore the extent to which expenditure of this kind had eroded her savings when considering whether what was left was sufficient to meet the more modestly priced style of living represented by an updated expenditure schedule, presented on her behalf, amounting to £26,855.42. “For, absent exceptional circumstances, it cannot be the purpose of the 1975 Act to make good a shortfall in resources needed to enable an applicant to discharge the cost of daily living when the shortfall has come about as the result of imprudent expenditure.”[55]The updated reduced schedule still contained items, which the judge identified, which he clearly regarded as overstated. The figures reasonably assumed that the claimant continued to live at 8 The Maltings. But there was no contribution, however small, from Mr Robinson. He had unfortunately suffered brain damage in a car accident but, apart from this, he is perfectly able-bodied. The judge clearly considered that he should make some contribution from his modest earnings towards the household expenditure. With these considerations in mind, the judge said at paragraph 124:
“Bearing in mind the meaning of “maintenance” as established by the authorities in relation to claims under section 1(2)(b) of the Act, I consider that £21,000 after tax is amply sufficient to provide for her reasonable maintenance. It is substantially more than the joint expenditure of the claimant and her husband stated in the evidence before the Court of Protection. It assumes that the claimant continues to live at 8 The Maltings and has a car and that her husband, apart from providing out of his own income for his own food and clothing, makes a contribution (in cash or in kind) of £1,500 to the other household expenses.”
[56]The judge discounted historic expenditure of the claimant which he had described in paragraphs 51 to 57 of the draft judgment as being in effect beyond the scope of reasonable maintenance.[57]The draft then considered the means available to the claimant to meet these requirements. The claimant’s half share of the residuary estate was approximately £75,000 taking account of the £205,306 that she had received under the September 1998 order of the Court of Protection. At the time of that hearing, the claimant’s own income before tax was stated to be £16,000. She had opted to receive a lifetime gift of £205,306 (rather than rely on a share of income arising from her mother’s assets) on the basis that it could be invested to produce an annual income of £8,000. She thus had had the opportunity of increasing her income before tax to £24,000. “Prudent stewardship of that sum and her own investments would have provided her with more than enough taxed income, when added to her income from the two settlements, to meet her stated current expenditure. It ignores any contribution from Mr Robinson.”[58]Her difficulty was that rather than invest prudently and live within her means, she had chosen to maintain a lifestyle, the cost of which had far exceeded her income. She has had recourse to part of the £205,306 and, in rather larger part, to her other savings. She had also, with the fall in the Stock Market, suffered a fall over two years in the value of her investments of £80,000, having decided to invest in “medium to high risk investments to provide greater income”. It was right that the claimant should be credited with having notional additional capital, which the judge assessed at £25,000, to reflect the fact that for some time she had had to dip into savings to finance some of the more extravagant items of personal expenditure. In making this assessment, the judge took into account that, to some extent, her expenditure on such matters had been the result of her BDS and that, so far from discouraging such expenditure, the deceased chose to indulge it by making payments towards it in the years to 1996.[59]Although the judge had inferentially characterised the claimant’s investment as imprudent (see paragraph 128 of the draft judgement), he said that it would not be right to penalise the claimant for the drop in value of her investments resulting from her decision to pursue a medium to high risk investment strategy with a view to increasing her income. This aspect of the claimant’s difficulties was not explored before him. It had not been suggested that she was acting recklessly. She appeared to have acted on advice. She was in no different position from many an investor. It was far from clear whether, even if she had pursued a more conservative investment strategy, she would not have suffered losses.[60]The claimant should be “credited” with the £20,000 which she had paid towards the costs of the proceedings. This was in accordance with a practice in the Family Division (see Leadbeater v. Leadbeater [1985] FLR 789), which the judge considered to be appropriate in applications under the 1975 Act.[61]Upon these considerations, the claimant was to be taken as having assets of £206,000 (£86,000 in savings and investments, £75,000 under the deceased’s will and £45,000 for excess expenditure and costs written back). She had an annual net income from the two settlement funds which the judge calculated as £6,400 and assessed annual earnings of £600 as a piano teacher. To achieve an annual net income of £21,000, she needed a net additional annual income of £14,000 from her own investments. Applying a Duxbury calculation (see F.v.F. (Duxbury calculation: rate of return) [1996] 1 FLR 833 and assuming a 3.75% real rate of return, she needed invested capital of £266,000, of which she only had a sum which the judge had calculated as £206,000. The difference between these figures was the £60,000 to which this draft judgment concluded she was entitled.[62]The judge explained why he had chosen a Duxbury real rate of return of 3.75% rather than the more generous 2.5% net return now set by the Lord Chancellor under section 1(1) of the Damages Act 1996. He also explained why he had rejected a net rate of return of 2% gross advocated by an actuary who admitted that he had no expertise in capitalising maintenance.

The judgment as handed down

[63]The first 118 paragraphs of this judgment were for practical purposes the same as in the first draft. There is a change to paragraph 22 where the judge now indicated that he would consider the various matters set out in section 3(1) of the Act after he had considered the claimant’s and Duncan’s circumstances. From paragraph 119 onwards, under the heading “Conclusions”, there are significant changes of order, structure and substance.[64]In paragraphs 120 to 131, the judge addressed systematically the considerations in the 7 sub sub-sections of section 3(1) of the Act to which the section requires the court to have regard. He noted, as he had in the earlier draft, that the approximate value of the deceased’s residuary estate was £330,000, of which the claimant’s half share after taking account of the order of the Court of Protection would be £75,000. He assessed the claimant’s present and future financial resources and needs. Her present free assets, after receiving £75,000 out of the estate, would be £161,000. In addition she had very limited earnings from her piano teaching, currently £600 per annum. These are the same figures as in the earlier draft without the notional credits amounting to £45,000. He again considered the expenditure schedule amounting to £26,855.42 and again concluded that £21,000 after tax was amply sufficient to provide for the claimant’s reasonable maintenance.[65]He considered Duncan’s present and future financial resources and needs. He said that his financial needs were likely to be considerable, but that it was not possible to put a figure on them. He considered Duncan’s assets and said that, beyond what he could be expected to earn as a car mechanic, his future earning potential was unknown.[66]He considered obligations and responsibilities owed by the deceased towards the claimant and Duncan, saying that it was difficult to see that the deceased had any continuing obligations or responsibilities towards either. He briefly considered the claimant’s and Duncan’s physical and mental condition. As to other matters, he noted that the claimant had a close relationship with the deceased and that it would also appear that the deceased wanted to treat her more favourably than Duncan in the overall division of her estate.[67]The judge thus had regard to the matters which the statute requires. It is not suggested otherwise, except that Mr Holbech submits that the judge gave too little weight to the wishes expressed by the deceased and the fact that, at times when she was judged to have testamentary capacity, she wanted to make a will leaving a greater share of her estate to the claimant than to Duncan.[68]The judge then explained that, on initially considering the essential question whether the disposition of the deceased’s estate was such as to fail to make reasonable provision for the claimant’s maintenance, he was of the view that the claimant’s resources, including those which she would receive from the deceased’s estate if no order were made, were insufficient to meet her reasonable maintenance requirement; and that accordingly the deceased’s will had failed to make reasonable provision for her. He explained the calculations which he had made in his earlier draft judgment. These included notionally crediting the claimant with £20,000 on account of the costs which she had so far laid out in these proceedings and £25,000 to reflect the fact that, for some time, she had to dip into her savings to finance some of the more extravagant items of her personal expenditure. He explained his calculation which produced an assumed annual net income of £18,200. This was £2,800 per annum less than the £21,000 which he had calculated as amply sufficient to provide for her reasonable maintenance. He had concluded that the deceased’s will failed to make reasonable provision for the claimant to the extent of that difference, which capitalised at £60,000. These are the same calculations as those in the earlier draft presented in slightly different form.

The judge then said at paragraph 134:

“Having sent a draft of my judgment coming to such a conclusion, but entertaining doubts about the correctness of my approach, I invited further submissions from counsel. As a result, I am persuaded that my initial view was wrong. The fact that the claimant’s reasonable maintenance requirement cannot be satisfied out of her savings and other sources of financial support currently available to her, including what she can presently expect to receive out of the deceased’s estate, is not sufficient, in itself, to justify the making of an order under the Act notwithstanding the closeness of the claimant’s relationship with the deceased and the latter’s wish to treat the claimant more favourably than Duncan. The question that the court has to consider is not whether it might have been reasonable for the deceased to have made greater provision for the claimant than she did but whether in all the circumstances, looked at objectively, it is unreasonable that the deceased’s will did not do so. See Re Coventry at 488F. After reflecting further on the matter I have come to the conclusion that it is not unreasonable that the deceased’s will did not do so.”
Mr Holbech accepted, as he had to, that, taken alone, this passage correctly states the approach to be taken by the court as derived from Re Coventry at the passage cited.[70]The judge’s reasons in outline for reaching his revised conclusion were as follows. The deceased took steps to make the claimant financially independent when she left Orchard House in 1988 to set up home on her own. She was already in receipt of income from two settlements and currently receives an annual gross income of £12,800 from these two sources. But for the lifetime gift of the sale proceeds of Orchard House authorised by the Court of Protection, the claimant would have received some £280,000 under the deceased’s will. She chose to apply to the Court of Protection for a lifetime gift. At the time of the hearing in September 1998, her own income before tax was stated to be £16,000. She could have invested the amount of the lifetime gift ordered by the Court of Protection to produce an income of £8,000 per annum. She therefore had the opportunity of increasing her income before tax to £24,000 per annum. In addition she could expect a further substantial payment out of her mother’s estate. These figures ignore any contribution from her husband. The claimant’s difficulty was that, rather than invest prudently and live within her means, she had chosen to maintain a lifestyle, the cost of which far exceeded her income. She had had recourse in part to the £205,306 and, in rather larger part to her other savings. Coupled with this had been her decision to invest in what she herself described “medium to high risk investments to provide a greater income”. With the subsequent fall in the stock market, she had paid the price for this with a fall over 2 years of £80,000 in the value of her investments.[71]Against that background, the judge did not consider that it was unreasonable that the deceased’s will failed to make even greater provision than the 50% which was given to her. In particular, he did not consider that it was unreasonable that the deceased’s will failed to make good the inroads into the claimant’s resources which have come about in large part because of her own decision as to how to apply those monies, after she had opted to take the bulk of her inheritance in advance of her mother’s death. The judge further considered that calculations of the kind he had been invited to consider involved a large measure of crystal ball gazing with many imponderables and imprecision. He did not consider that this approach provided a sound basis for interfering with a person’s freedom of disposition. He did not consider, having regard to the matters required in section 3(1) that the claimant had established a sufficient basis for disturbing the equal division by the deceased of her substantial estate. He accordingly dismissed the claim.

Grounds of appeal and discussion

[72]The claimant’s written reamended grounds of appeal extend to 18 pages and 40 paragraphs. Some of this material maintains that the judge failed to have sufficient regard to particular features of the evidence relied on by the claimant. Much of this is unpersuasive when for practical purposes all the points relied on feature explicitly in the judgment. For instance, it is suggested that the judge failed sufficiently to consider the fact that Duncan might possibly in the future be able to earn something as a motor mechanic. The judge plainly did consider this possibility and in my view there is no proper basis for saying that he failed to have proper regard to it or those of the other points made which I do not specifically mention later in this judgment. Leaving aside points of this kind, the thrust of the claimant’s case on appeal is that the judge’s reasoning and conclusion in his first draft judgment were correct. Insofar as the reasoning in the judgment handed down was different, it was wrong.[73]The first ground of appeal, however, is that the judge made a serious procedural error in withdrawing his original draft judgment and substituting a different judgment producing a different result. It is submitted that the judge ought only to have exercised a discretion to reopen the first draft in exceptional circumstances and that there were no exceptional circumstances. Mr Wilson’s letter inviting the judge to reconsider his first draft was erroneous. Mr Wilson’s skeleton argument had addressed the question whether the provision made in the deceased’s will was reasonable. The draft judgment did deal with this point. The draft judgment correctly set out in paragraph 15 the two stage test to which Mr Wilson had referred. I agree with this last point. It is submitted alternatively that the judge should only have invited, or had regard to, further submissions which amounted to requests for clarification of the reasoning in his draft judgment. It was to be inferred that the parties were merely being asked to make submissions to help the judge clarify his reasoning in support of his conclusion. It was an improper exercise of his discretion to reverse his original decision. In doing so, he usurped the function of the Court of Appeal and committed a serious procedural irregularity.[74]Mr Holbech goes so far as to submit that this court should treat the first draft judgment as the judgment and put the burden on the respondent of showing that it was wrong. Mr Holbech further submits that, having invited submissions in the circumstances in which he did and in the terms in which he did, the judge should not have handed down his judgment in altered form without giving the claimant an opportunity to make oral submissions.[75]Neither party contends for a retrial.[76]Before the introduction of the Civil Procedure Rules, it was settled law that a judge had power to recall, reconsider and alter an order made after he had given judgment at any time before the order was drawn up and sealed. This appeared from a number of authorities. One of them was Pittalis v Sherefettin [1986] 1 QB 868. In that case, on the day following that on which the judge had given judgment in a county court, he decided that he had been wrong. The judge provided the party with grounds upon which he would, if not persuaded otherwise, alter his previous judgment and order. A further hearing was fixed at which counsel made further submissions. In the course of his further judgment, the judge said that, within minutes of delivering his first judgment, he was sure that his decision was wrong and that he remained of that view. The plaintiff landlords appealed against the altered decision. They relied on In re Barrell Enterprises [1973] 1 WLR 19. Fox LJ said at page 879E in Pittalis that Barrell Enterprises did not seek to particularise the cases where an order might or might not be recalled. The case itself was on its facts far removed from that before the court. Fox LJ then said:
“In the present case, the judge recalled the order the day after he had made it. It is not suggested that the landlords in any way, in proper reliance upon the order, acted to their detriment. We are dealing with a case where the judge, practically as soon as he gave judgment, decided that it was wrong. As a matter of sensible administration of justice and fairness between the parties, it seems to me proper in the circumstances that the judge should be at liberty to recall his order. The position can properly be called exceptional.”
[77]Dillon LJ said in Pittalis at page 882C:
“It is submitted for the landlords that the decision of this court in [Barrell Enterprises] is to be regarded as a comprehensive exposition of the exceptional circumstances in which it is proper for a court or a judge to recall an order which has been pronounced orally but has not yet been drawn up, registered or otherwise perfected. But I cannot regard In re Barrell Enterprises as overruling or qualifying the earlier decision of this court in Millensted v Grosvenor House (Park Lane) Limited [1937] 1 KB 717, which apparently was not cited in In re Barrell Enterprises. In the Millensted case this court approved statements of the law in earlier authority to the effect that a judge can always reconsider his decision until his order has been drawn up or perfected, and more importantly, this court upheld the action of a High Court Judge, who had in an oral judgment awarded a certain sum by way of damages but then withdrew that judgment and substituted judgment for a lower figure, because before his order was drawn up, he was satisfied after serious further consideration that the sum he had originally awarded was excessive. … The Millensted case is, in my judgment, a close parallel to the present case. It is indeed exceptional for a judge who has pronounced an order in court to be completely satisfied, before the order has been drawn up, registered or perfected, that the order was wrong. That happened, however, in the present case, and accordingly the judge was entitled, taking the view he did, to recall his earlier order. I see nothing unfair in the procedure he followed to do so.”
Neill LJ agreed with the judgments of Fox LJ and Dillon LJ.[78]Stewart v. Engel [2000] 3 All ER 518 is a decision of this court after the introduction of the Civil Procedure Rules. The claimant brought proceedings for negligence and breach of contract against the defendants. The defendants applied for summary judgment dismissing the claim. After a hearing, the judge distributed a draft judgment which concluded that the claim as formulated was bound to fail, but repeated a previously implicit invitation to the claimant’s advisors to apply for permission to amend the claim to plead an action in conversion. No such application was made before the judge formally handed down the judgment. The judge accordingly ordered that the action be dismissed. After receiving the final version of the judgment, the claimant obtained advice from leading counsel. As a result, the claimant applied under rule 3.1 of the Civil Procedure Rules for permission to amend to plead a conversion claim. The judge directed that his order should not be issued pending the hearing of the application. He subsequently gave the claimant permission to amend her pleadings.[79]On appeal to this court, Sir Christopher Slade said at page 523d that it had been accepted for many years that a judge who was giving judgment has the power to reconsider his conclusion and in effect reverse his own decision provided the order recording his earlier decision has not yet been formally completed. He referred to Barrell Enterprises and also to a number of authorities collated by Neuberger J in Charlesworth v Relay Roads Limited [2000] 1 WLR 230. No binding authority of this court established that this jurisdiction had survived the introduction of the Civil Procedure Rules. Sir Christopher Slade accepted that it was possible that the Barrell jurisdiction fell to be regarded as a rule of practice rather than law and was capable of being abrogated by the introduction of the Civil Procedure Rules. Nevertheless, he was satisfied that there is nothing in the CPR which obliged the court to hold that it was so abrogated and that the court should not reach any such conclusion. On the contrary, the jurisdiction, if very cautiously and sparingly exercised, served a useful purpose and fully accorded with the overriding objective of enabling the court to deal with cases justly. Sir Christopher Slade rejected a submission, made in circumstances differing from those relevant to the present appeal, that it made no material difference that the application to amend was made after, rather than before the judge had delivered his formal judgment.[80]Sir Christopher Slade then said at page 525b that, since there must be some finality in litigation and litigants cannot be allowed unlimited bites at the cherry, it is not surprising that, according to the authorities, there are stringent limits to the exercise of the discretion conferred on the court by the Barrell jurisdiction. Russell LJ had said at page 23 in that case:
“When oral judgments had been given, either in a court of first instance or on appeal, the successful party ought save in the most exceptional circumstances to be able to assume that the judgment is a valid and effective one.”
This principle must have greater application where the judgment is a formal written judgment in final form, handed down after the parties have been given the opportunity to consider it in draft and make representations on the draft. At least until the coming into force of the CPR, the Barrell decision would have been clear authority binding on this court for the proposition that only in exceptional circumstances could it be proper for a judge to exercise his discretion under the relevant jurisdiction to vary a previous order once such order had been made. It may no longer be strictly binding after the introduction of the CPR. Nevertheless, all the considerations which led the court to decide as it did in that case still applied. The court therefore had to see whether there were exceptional circumstances sufficient to justify the judge in exercising the Barrell jurisdiction.[81]Clarke LJ considered rules 40.3, 40.7(1) and 3.1(7) of the CPR. He held that the judge’s first order must have been an order within the meaning of rule 3.1(7) so that the court had power to vary it, at least until it was drawn up or sealed. Clarke LJ then considered the issue whether the judge misdirected himself in principle in the exercise of his discretion in reopening his previous order. On this he said at page 533b:
“As I indicated above, it is my view that this question depends upon the application of the overriding principle [sc. objective] to all the circumstances of the case. I agree with Sir Christopher Slade that Mr Mann QC’s submission that it makes no difference to the exercise of that discretion whether the application was made before or after the judge orally announced his order to dismiss the action cannot be accepted. The fact that it was made after and not before he did so is to my mind an important factor in deciding whether to grant permission. On the other hand, I respectfully differ from the suggestion that this court is bound by Re Barrell Enterprises to hold that permission to amend should only be granted in exceptional circumstances where the application is made after the order is announced orally but has not been drawn up and sealed. In deciding how to apply the overriding objective that factor is simply one consideration to be taken into account, albeit an important one. I am therefore unable to agree that we have to look to see whether in November 1999 there existed exceptional circumstances sufficient to justify the judge in exercising “the Barrell jurisdiction”.”
[82]Clarke LJ said that much would depend upon whether the defendants had acted on the judgment that had been announced. He entirely agreed that if the successful party had assumed that the order or judgment was effective and acted on it it would be a powerful factor to weigh in the balance in his favour. He then referred to Neuberger J’s decision in Charlesworth v Relay Roads and cited the six propositions which appear in that judgment at page 238. These included: “(4) … because it is inherently contrary to the public interest and unfair on the other side that an unsuccessful party should be able to raise new points or call fresh evidence after a full and final judgment has been given against him, it would generally require an exceptional case before the court was prepared to accede to an application where the applicant could not satisfy the three requirements in Ladd v Marshall [1954] 1 WLR 1489. Clarke LJ considered that this and Neuberger J’s other factors would be relevant considerations in considering the application of the overriding objective under the CPR to the facts of the particular case. The question was whether the judge had misdirected himself in reopening the matter. In his opinion, he did not. In this, Clarke LJ disagreed with Sir Christopher Slade and also with Roch LJ, who agreed with Sir Christopher Slade that the appeal should be allowed for the reasons that he had given. Roch LJ also referred to the fourth principle formulated by Neuberger J in Charlesworth. The claimant’s application involved raising a new issue. He would adopt the approach of Neuberger J and apply it to the circumstances of the present case.[83]It is clear, I think, that the majority decision in Stewart v Engel was that the exercise of the jurisdiction to reopen and alter a judgment and order once they have been given and made requires exceptional circumstances. I am not myself convinced that there is likely in a particular case to be a substantial practical difference between the formulations of the majority and those which Clarke LJ preferred.[84]In Noga v Abacha [2001] 3 All ER 513, Rix LJ had heard a complex dispute in the Commercial Court. After a lengthy trial, he had handed down a reserved judgment determining preliminary issues. The losing claimant contended that the judge had ignored binding authority and that his decision was flawed. It applied to the judge to reconsider his judgment. Rix LJ considered himself bound by Stewart v Engel, following the spirit, if not the letter, of the decision in Re Barrell Enterprises in the light of the requirements of the overriding objective, to regard the need for exceptional circumstances as a requirement for the proper exercise of the jurisdiction to reconsider a decision. He said at paragraph 42:
“Of course, the reference to exceptional circumstances is not a statutory definition and the ultimate interests involved, whether before or after the introduction of the CPR, are the interests of justice. On the one hand the court is concerned with finality, and the very proper consideration that too wide a discretion would open the flood gates to attempts to ask the court to reconsider its decision in a large number and variety of cases, rather than to take the course of appealing to a higher court. On the other hand, there is a proper concern that courts should not be held by their own decisions in a straight-jacket pending the formality of the drawing up of an order. … Provided that the formula of “exceptional circumstances” is not turned into a straight-jacket of its own, and the interests of justice and its constituents as laid down in the overriding principle are held closely to mind, I do not think that the proper balance will be lost. Clearly, it cannot be in every case that a litigant should be entitled to ask the judge to think again. Therefore, on one ground or another the case must raise considerations, in the interests of justice, which are out of the ordinary, extraordinary or exceptional. An exceptional case does not have to be uniquely special. “Strong reasons” is perhaps an acceptable alternative to “exceptional circumstances”
. It will necessarily be in an exceptional case that strong reasons are shown for reconsideration.”[85]On the facts and in the circumstances of that case, Rix LJ considered that to grant the application to reconsider his judgment would subvert the appeal process itself. He considered it to be wrong for a judge to be treated to an exposition such as would be presented to a court of appeal. If in such circumstances a judge should be tempted to open up reconsideration of his judgment, an appeal would not be avoided, it would be made inevitable.[86]In the present case, the judge did not hand down or deliver the first draft judgment. He delivered it to the parties in draft, in accordance with the Practice Statement (Supreme Court: judgments) [1998] 1 WLR 825 and the Practice Statement [1999] 1 WLR 1, inviting the parties to submit any list of typing corrections and other obvious errors in writing. He did not therefore alter a judgment that had been given.[87]In Royal Brompton Hospital v Hammond (23rd May 2001): 76 Con LR 62, this court similarly provided draft judgments to the parties. In response, the parties provided a list of typographical errors and other slips that were subsequently incorporated into the judgments. Three of the parties also supplied skeleton arguments suggesting that some of the conclusions reached were wrong. At their request the judgments were not formally handed down on the appointed day, but directions were given for skeleton arguments to be provided to assist the court to decide whether it should reconsider the judgments. These facts were the same as in the present case, except that Blackburne J was sitting at first instance.[88]In the Brompton Hospital case, the court said that there could be no doubt that a judge has jurisdiction to recall, vary or alter his judgment or proposed order up to the time that the order is perfected. The jurisdiction remains whether the judgment has been given orally, has been handed to the parties in draft or has been formally handed down. That jurisdiction was not altered by the Civil Procedure Rules as was made clear in Stewart v Engel. Counsel who appeared agreed that the court had jurisdiction in that case to alter their judgments in any way it thought fit. The supply of the draft judgments under the Practice Statement did not constitute the giving of the judgments.[89]The court referred to the judgment of Brooke LJ in Prudential Assurance v McBains Cooper [2000] 1 WLR 2000 at 2008, where he said:
“It is clear that when a copy of the judgment is sent to the parties’ legal advisers in accordance with this new practice, it is not at that time being given or made within the meaning of C.P.R., r. 40.7 (“a judgment or order takes effect from the day when it is given or made”): compare Holtby v Hodgson (1889) 24 Q.B.D 103. It is also clear that the judge is at liberty to alter the terms of his or her judgment (whether to make minor corrections or for any other reason) before handing it down formally in the court. This, however, is nothing new, because it has always been within the powers of a judge to reconsider his or her decision at any time before it is entered and perfected. … It has also always been within a judge’s power to alter at any time his or her judgment if it has been delivered orally, although not so as to contradict the order made on the judgment once it has been perfected. … … It follows that under the new practice the process of delivering judgment is initiated when the judge sends a copy of it to the parties’ legal advisors.”
[90]Having cited this passage, the court in the Brompton Hospital case then said:
“Counsel for the respondents submitted that a court would more readily alter its judgment before it was officially handed down than afterwards. We disagree. Of course culpable delay will be a factor against alteration but, absent such delay, we can see no reason why timing should normally be relevant. In particular there does not appear to us to be any logical reason why a judgment should be more readily altered after delivery to the parties, but before handing down, than during delivery of an oral judgment or immediately after delivery.”
The court then proceeded to decide the question in the case before them, saying that the essential difference between the parties’ submissions concerned the exercise of discretion by this court to the facts of the particular case. The omission of one paragraph from the draft judgments was uncontentious, but the court declined to make any other alteration.[91]I respectfully question the emphasis in the paragraph of this judgment to the effect that the same considerations apply to a draft judgment which has been provided to the parties for typographical correction as to a judgment which has been handed down and an order made in consequence. If a judgment has not been handed down or delivered, it has not been given. Until it is given, it is of no effect. Granted that there are obvious reasons why it would be unfortunate, as it has been in this case, for a judge to alter a draft judgment which has been handed to the parties, it remains a draft judgment which, in my view, the judge is at liberty to alter. The jurisdiction to do so is not in doubt. The question is whether “exceptional circumstances” or something less rigorous will enable him to do so in a particular case.[92]I am unconvinced that the passage in the judgment of Brooke LJ in the Prudential Assurance case, which I have quoted, is of assistance to this question. The issue in that case was quite different. The first instance judge had sent a draft written judgment to both parties’ legal representatives in accordance with the practice, setting a date for handing down the judgment in open court. On that date the parties agreed to settle the action and invited the judge to adjourn the handing down. He did so. The parties subsequently compromised the action and urged the judge not to hand down the judgment because they had come to their compromise on the basis that judgment would not be delivered. The judge decided that there were strong public interest grounds for delivering the judgment in open court, but granted the parties permission to appeal that decision and further adjourned the handing down of the judgment. There was an appeal, which both parties supported. This court dismissed the appeal, deciding that the judge had been entitled to conclude that there were strong public interest grounds for delivering the judgment in open court which outweighed the parties’ wishes that the judgment should not be released. It was in the course of reaching this decision that Brooke LJ said “that the process of delivering judgment was initiated when the judge sent a draft of it to the parties’ legal advisors.”[93]The passage in the judgment of the court in the Brompton Hospital case to which I have referred is not, I think, binding, since it was not necessary to the decision. There was no dispute but that “the court had jurisdiction in this case to alter their judgments in any way it thought fit.” It was apparently not contentious that the court should look for exceptional circumstances before doing so. The issue was how the court should exercise its discretion. The passage is also contrary to what both Sir Christopher Slade and Clarke LJ said in Stewart v Engel in passages to which I have referred.[94]Once a judgment has been handed down or given, there are obvious reasons why the court should hesitate long and hard before making a material alteration to it. These reasons have been rehearsed in the cases to which I have referred and I need not elaborate them further. The cases also acknowledge that there may very occasionally be circumstances in which a judge not only can, but should make a material alteration in the interests of justice. There may for instance be a palpable error in the judgment and an alteration would save the parties the expense of an appeal. On the other hand, reopening contentious matters or permitting one or more of the parties to add to their case or make a new case should rarely be allowed. Any attempt to do this is likely to receive summary rejection in most cases. It will only very rarely be appropriate for parties to attempt to do so. This necessarily means that the court would only be persuaded to do so in exceptional circumstances, but that expression by itself is no more than a relatively uninformative label. It is not profitable to debate what it means in isolation from the facts of a particular case.[95]The practice of providing the parties’ legal representatives with a draft of written reserved judgments a day or two before the date appointed for handing them down is intended to promote efficiency and economy. Typographical corrections may be made so that the judgment is available in its final form for publication on the day that it is handed down. The parties are enabled to agree the form of any order and consequential order, for instance as to costs. The court time taken in delivering the judgment is reduced to a minimum. In many cases, the parties are relieved from the expense of their lawyers attending when the judgment is handed down. The standard notice on a draft judgment states the purpose of making it available and the limitations on its use and publication. It is not provided so that parties may reopen its substance. If a draft judgment is altered materially after it has been provided to the lawyers but before it is handed down, that fact will become known to the clients. As a minimum, disappointment may ensue. The possibility of an appeal based on differences between the draft judgment and the handed down judgment is increased. This was certainly so in the present case in which, as Rix LJ indicated in Noga v Abacha, an appeal became inevitable, or at least highly likely.[96]It scarcely needs saying that judges should not send draft judgments to the parties’ legal representatives in accordance with the Practice Statement, if they themselves perceive a risk that they may want to change them materially before they hand them down. More importantly, perhaps, parties should understand that this procedure is not an invitation to pick holes in the substance of the draft judgment nor to invite the court to reopen or add to contentious matters. The court will only exceptionally make material alterations to a draft judgment provided in this way. So perhaps the uninformative label “exceptional circumstances” needs to be appended to the exercise of the jurisdiction. I personally prefer Rix LJ’s “strong reasons”, but that again is only a label. The question whether to exercise the jurisdiction can only depend on the circumstances of the particular case.[97]In the present case, I consider that Mr Wilson went beyond the limit of what was appropriate in writing to the judge in the terms in which he did upon receiving the draft judgment. As Mr Holbech points out, paragraph 15 of the draft judgment contained the two stage test and it was at best contentious whether the judge had proceeded on an erroneous basis in law. To be fair to Mr Wilson, he wrote in appropriately apologetic terms.[98]The circumstances of the case will usually include the possibility and appropriateness of an appeal. The court in which the problem arises may be a consideration, since appeals in lower courts are generally less troublesome and expensive for the parties than appeals at higher levels. I have indicated my view that there is a material distinction between a judgment that has been handed down or given and a draft judgment which has not yet been handed down. There is also, in my view, a significant difference between a case in which one or more of the parties want to persuade a reluctant judge to reconsider a draft judgment; and a case where the judge himself has decided that his draft judgment is wrong. In the latter case, at least where the judgment is only a draft, I consider that the judge is positively obliged to alter it, however unfortunate the consequences of doing so may appear. It cannot be right for the law to require a judge to hand down for the first time a judgment which he believes to be wrong. In the present case, Mr Wilson’s letter appears to have initiated reconsideration by the judge. But as the judge himself said in the judgment which he handed down, he himself entertained doubts about the correctness of his approach and, having invited further submissions, he was persuaded that his initial view was wrong. There is no doubt but that he had jurisdiction to alter his draft. I believe that, since he was persuaded that his initial view was wrong, he was positively obliged to alter it. If I were wrong about that, and if (which I question) “exceptional circumstances” were required, these were such circumstances. It is not suggested that the claimant altered her position as a result of the draft judgment. To that extent, she was not prejudiced by it. I see the force of Mr Holbech’s submission that the judge should have given him an opportunity to make oral submissions. But I regard this as a matter of judicial discretion in which the judge cannot be said to have been plainly wrong.[99]For these reasons, I do not consider that what the judge did was a procedural irregularity or wrong in law. I would reject this ground of appeal. In doing so I acknowledge that what happened was most unfortunate. It generated an appeal so that the costs have become disproportionate to the amounts in issue.[100]I turn to the other grounds of appeal. The question of course is whether the judgment which was handed down was wrong. The fact that there was a previous draft which came to a different conclusion does not by itself mean that the eventual judgment was wrong. Mr Holbech is entitled to point in submission to differences in the reasoning and to urge us, as he does, that the eventual judgment was wrong because the draft judgment was right.[101]Mr Holbech is also sensible in limiting his submissions to adopting the judge’s finding that £21,000 after tax was sufficient to provide for the claimant’s reasonable maintenance; to contending that the judge’s original calculation which reached an assumed annual net income of £18,200 was a correct calculation; and to submitting that it was unreasonable that the deceased’s will did not make a provision for the claimant sufficient to increase her annual net income to the amount of £21,000. He emphasised however that the £18,200 was the highest possible figure that the judge could have taken for the claimant’s income.[102]The substantial submissions relied on are these:(a) The judge’s draft judgment was correct in concluding that it would not be right to penalise the claimant for the drop in value of her investments resulting from her decision to pursue a medium to high risk investment strategy. This aspect of the claimant’s difficulties were not explored before the judge and it had not been suggested that she was acting recklessly. The handed down judgment was wrong to reach an opposite conclusion.(b) The judge ought to have concluded, as he did in the draft judgment, that a calculated difference between the amount after tax needed for the claimant’s reasonable maintenance and the amount of an assumed annual net income available to her should have resulted in a conclusion that it was unreasonable that the deceased’s will did not make provision for this difference.(c) The judge gave little or no weight to the deceased’s wishes and to the closeness of the relationship between the claimant and the deceased. There was an imbalance which resulted in Duncan receiving too great a proportion of the residuary estate. The claimant’s call on the estate was greater than his.(d) The judge’s conclusion that the claimant did not suffer from mental or physical disability was not justified on the evidence.(e) The judge ought not to have used at various points in his calculations a Duxbury calculation assuming a net real rate of return of 3.75%, but rather should have used a rate of return more favourable to the claimant, as for instance that prescribed under section 1(1) of the Damages Act 1996.[103]Mr Holbech examined the reasons given by the judge for revising his draft conclusion. The judge said that the claimant had chosen to maintain a lifestyle, the cost of which far exceeded her income. But the judge had taken this into account in his draft judgment by adding a notional £25,000 to her actual capital. This is not, I think, a persuasive criticism. The £25,000 in the draft judgment was necessarily highly speculative and the judge was not to be criticised in my view for standing back from it. His conclusions as to historic expenditure by the claimant, which in the context he characterised as excessive, were conclusions which in my view he was entitled to reach. I was not persuaded that there was an element of double counting here. Furthermore Mr Wilson calculated that the claimant had in fact spent approximately £90,000 more than her income (excluding legal cost) since September 1998 – see footnote 31 to Mr Wilson’s skeleton argument. Mr Holbech did not succeed in attacking either the principle or the mathematics of this calculation. Excluding an amount for a car, this represented an expenditure in excess of income over 4 years of the order of £20,000 per year. Mr Holbech submits that the judge was wrong to conclude that the task of assessing the claimant’s anticipated needs and resources involved so many imponderables that it did not provide a sound basis for interfering with a person’s freedom of disposition. It was never submitted at trial that such calculations could not or should not be made. It is the kind of exercise of assessment and prediction frequently adopted in ancillary relief applications and in family provision cases.[104]As to the judge’s observation that Duncan would take an equal share in the estate which his father would have taken if he had been alive, Mr Holbech submits that Duncan would in fact be entitled to substantially more than half of the deceased’s estate because of the order of the Court of Protection in September 1998. I find this unpersuasive. It is in the nature of an attempt to go behind the unappealed order of the Court of Protection. The claimant may have wanted to persuade the Court of Protection to permit a substantial life time gift which would not be taken into account when the deceased’s will came to be administered. But the Court of Protection did not so order, and the judge was bound to take account of the order and the consequences of it. The claimant could have conserved the value of that substantial gift but, as the judge found, chose not to do so.[105]I have some sympathy with the submission that the draft judgment did not consider it right to penalise the claimant for imprudent investment, whereas the judgment handed down appeared to do so. Valid points in answer to this are that the point is not one of principle; that it was at least open to the judge in all the circumstances to regard the investment risk as a neutral factor; and that the judge was not obliged to decide the outcome on precise mathematical calculations.[106]I also have sympathy with Mr Holbech’s submission that the judge gave too little weight to the deceased’s wishes. The evidence on this topic was extensive and covered a period of upwards of 3 years before she died. There were occasions when the deceased probably did have testamentary capacity, although she was unable to manage her own affairs. There were other substantial periods when she probably did not have testamentary capacity and, latterly at least, the judge clearly regarded what she said as irrational. This applied in particular to her sudden unexplained dislike for Duncan. The judge said that it was indeed puzzling that, within the space of just 3½ years, the deceased’s testamentary wishes for her only grandchild should apparently alter from a desire to give him half of her residuary estate to a wish to leave him a token £500. The fact remains that the evidence did show that over a substantial period the deceased expressed the wish, in various forms and to various people, that she wanted to treat the claimant more favourably than Duncan in the overall division of her estate. In the sense that the judge did not enable this to be achieved, he did not give effect to those expressed wishes. The judge had regard to the evidence, because he set it out and considered it at length. He cannot be said to have failed to take it into account because he specifically referred to it as part of his conclusions. The reference here was shortly expressed. But his earlier consideration of this evidence included conclusions, which I have summarised in paragraph 47 of this judgment, which justify a conclusion that the deceased’s expressed wishes should not be adopted as the outcome of these proceedings. In particular, the judge correctly considered that the cases on this subject did not lead to the court awarding financial provision which went beyond what the claimant reasonably required for his or her maintenance.[107]Mr Holbech submits that the judge failed to take properly into account the fact that an application for a statutory will, which, if it had succeeded, would have given the claimant a 80% share of the deceased’s estate, was frustrated by the deceased’s death just before the hearing was due to take place. This submission assumes that the application would have been successful, if the deceased had not died. We did not hear detailed specific submissions on this point, but, in the light of the judge’s findings on related matters, I regard the submission as unduly optimistic.[108]The judge’s finding that neither the claimant nor Duncan suffers from any physical or mental disability was clearly a narrowly expressed and technically correct statement. As he said, the claimant suffers from BDS which causes her to undergo unnecessary cosmetic procedures; and Duncan’s psychiatric condition is a source of concern and the prognosis uncertain. As the judge said, he had set out these matters at length in his judgment and there is no proper basis for saying that he failed to take them into account.[109]In my judgment, there is no force in the submission that the judge was wrong to make calculations using a net real rate of return of 3.75%. Duxbury calculations are habitually used by the court in making calculations in relation to maintenance and periodical payments. I do not see any proper basis for submitting that the judge was bound to use a copper-bottomed rate of return more favourable to the claimant such as is available for use in some personal injury cases.[110]With some hesitation, I have reached the conclusion that the judgment which the judge handed down cannot properly be regarded as wrong. I am sure that my hesitation springs mainly from the fact that the judge handed down a different judgment in draft and the fact that he did not give effect to the general drift of the evidence relating to the deceased’s wishes. However, the judge had regard to all the matters which the statute requires and further addressed the critical questions which on authority he was required to address. In particular, he addressed the question posed in Re Coventry at page 488F, whether in all the circumstances, looked at objectively, it was unreasonable that the deceased’s will did not make greater provision for the claimant’s maintenance. Mr Holbech has in my view identified no error of law. He also accepted that an annual net income of £18,200 may not represent significant financial hardship, and that a shortfall of £2,800 per annum is not inordinately large, albeit substantial over the claimant’s remaining life. The judge did not fail to have regard to material evidence. On the contrary, he considered it at great length.[111]For the rest, his conclusion was a matter of discretionary judgment within the structure of the statutory provisions. In one particular – that relating to prudent investment – he expressed a different view from that which he had expressed in the draft judgment. That view may not have been one which was propounded on behalf of Duncan. Nevertheless, the main burden of his judgment was that the claimant had chosen to apply to the Court of Protection for a substantial life time gift and that it was largely as a result of her choices that the full value of that gift was no longer available when the deceased died. She received the life time gift scarcely more than a year before the deceased died, although further time passed before the hearing of her application. If the full value of the gift had been available, she would have had resources to sustain fully what the judge considered to be her reasonable ample maintenance requirement. A judgment that in all the circumstances, looked at objectively, it was not unreasonable that the deceased’s will did not make greater provision for her maintenance is not one which is in my view amenable to appeal. There was a calculated difference between the amount “amply” sufficient for the claimant’s maintenance and her income. But that difference resulted from the way in which the claimant herself had chosen to handle the very substantial lifetime gift which she had chosen to receive from what would otherwise have been her entitlement under the estate. The claimant had also received very substantial advances from her mother, in addition to the lifetime gift, while she was alive.[112]For these reasons I would dismiss this appeal.[113]I also agree that this appeal should be dismissed. Having issued a draft judgment, but having changed his mind, the judge was in my view not only entitled but bound to give effect to his second thoughts. There is no basis on which to treat him as having handed down finally a judgment which he in fact issued only in draft and then withdrew. The question whether his final judgment can stand is one which has to be addressed on its merits, though taking into account of course the differences in approach and reasoning that appear on a comparison of the draft and final judgments.[114]I agree that, when one undertakes this exercise, the picture is not a happy one. However, neither party asked us to contemplate a retrial, and I have, with the same doubts that Anthony May LJ has expressed, come to the same conclusion as he does for the reasons he gives. The general explanation for the difference between the draft and final judgment appears to me to have been that the judge in his final judgment concentrated on the first issue, whether the will made reasonable financial provision for the appellant, whereas his draft judgment, although identifying this issue, concentrated on the second issue, what were the appellant’s reasonable requirements.[115]Having said that, I recognise the force of some of the criticisms advanced on the appellant’s behalf, particularly the criticisms that the second judgment took an inconsistent attitude towards(a) the investment losses which she incurred in respect of the lump sum of £205,306 advanced to her out of the proceeds of her mother’s house pursuant to the Court of Protection order of September 1998 and(b) her inability to live within her means, which in the judge’s draft (at paragraph 130) he accepted was at least “to some extent” the result of the body dysmorphic syndrome (“BDS”), about which her GP gave evidence recorded at paragraphs 28-30 in both the draft and final judgments; I have also felt some sympathy for the criticism that the judge might have given more weight than he did to the deceased’s probable wishes at times when she was able to form and express them rationally.[116]As to the appellant’s losses, even the draft judgment spoke at paragraphs 128-9 of her not having invested prudently; the judge was at that stage acquitting her of any fault in her investment strategy (cf paragraph 131 of the draft); in speaking of the fact that she did not invest “prudently”, he cannot in context therefore have meant more than that she chose to invest in high risk investments, with consequent risks. When in his final judgment, he again spoke of her not investing “prudently”, it seems to me that he must again have meant that she had had the money, and had chosen a particular strategy for its investment, for which she must bear responsibility, even though not at fault. He was in my view entitled to consider that to be relevant when addressing the issue whether in all the circumstances the will made reasonable provision for her.[117]As to her expenditure, the judge recorded at paragraphs 28-30 of the draft and final judgment evidence to the effect that the appellant had no real need for the operations she had undertaken, as well as reasons for doubting whether she was at any real risk of recurring anorexia, if she did not undertake them. Before the receipt of the monies provided under the Court of Protection order, the appellant had also been able to live on a much lesser income than she did subsequently, and put forward lower requirements to the Court of Protection accordingly. Once the judge concentrated, as he did in his final judgment, on the issue whether the will made reasonable provision for the appellant, such considerations were again of particular relevance.[118]The judge recounted the evidence regarding the deceased’s changes of mind and developing attitudes at paragraphs 80-109 in his final judgment. Mr Wilson for the respondent did not dispute that these paragraphs indicated that there were some, though apparently limited, periods after 1996 when the deceased appears to have been capable of forming and expressing a rational wish to benefit the appellant by a split of her property on a basis other than fifty-fifty as between her and Duncan. But the picture is one of shifting and uncertain mental states, with differing views being expressed from time to time and with the deceased at some points also expressing attitudes which do not appear rationally explicable. The judge recorded the picture accurately. I do not think that it is either so clear or so significant that his conclusion that a fifty-fifty made reasonable provision for this appellant was not one to which he could reasonably come.[119]I also agree that this appeal should be dismissed. In short, I am not persuaded that the judge made any error entitling this court to interfere. In assessing whether the disposition of the deceased’s estate effected by her will was not such as to make reasonable financial provision for the claimant, the judge had to take into account the matters specified in s. 3(1)(a)-(g) Inheritance (Provision for Family and Dependants) Act 1975 and they included every matter which in the circumstances of the case the court considered relevant. The task of the court inevitably involves the weighing of the various factors for and against the claimant’s claim. This court should be slow to interfere with the judge’s assessment on such an exercise unless his approach was erroneous in law or he took into account a matter which the judge could not reasonably consider relevant or he left out of account a matter which the judge could not reasonably consider irrelevant or he was plainly wrong. I do not think that the judge made any such error, even though it may be that another judge would, for example, have given greater weight to the wishes expressed by the deceased that the claimant should be given a larger share of her estate than the deceased’s grandson. But it cannot be said that the judge left that factor out of account.[120]I add a few brief words of my own on the first ground of appeal. With one possible qualification it is in my judgment incontrovertible that until the order of a judge has been sealed he retains the ability to recall the order he has made even if he has given reasons for that order by a judgment handed down or orally delivered. That was established in two decisions of this court: Millensted v Grosvenor House (Park Lane) Ltd. [1937] 1 KB 717 and Pittalis v Sherefettin [1986] QB 869. Such judicial tergiversation is in general not to be encouraged, but circumstances may arise in which it is necessary for a judge to have the courage to recall his order. If, as in Millensted and Pittalis, the judge realises that he has made an error, how can he be true to his judicial oath other than by correcting that error so long as it lies within his power to do so? No doubt that will happen only in exceptional circumstances, but I have serious misgivings about elevating that correct description of the circumstances when that occurs as exceptional into some sort of criterion for what is required for the recalling of an order before it is sealed. The possible qualification to which I have referred is where the judgment handed down or delivered has reasonably been relied on by a party who has altered his position irretrievably in consequence. In such a case the interests of justice may require the judge not to resile from that judgment even if the order has not been sealed. But that is not this case, where it is not suggested that the claimant had altered her position as a result of the draft judgment.[121]If a judge gives reasons why he is recalling his order or a draft judgment which he has sent out and those reasons are unpersuasive, that in itself does not seem to me to require the court to interfere with the perfected order unless it can be said that the judge’s final judgment is thereby, or for some other reason, shown to be wrong. Mr. Holbech strongly criticised the reasons given by the judge for withdrawing his draft judgment, and, if I may say so with respect to the judge, there was substance in some of those criticisms. However, I was not persuaded that thereby the judge’s final judgment was shown to be wrong in any respect. I can well understand and sympathise with the disappointment generated on the claimant’s side by the judge’s change of mind, but in the circumstances of the present case it has not been shown that the judge’s second thoughts can be impugned.[122]For these as well as the reasons given by my Lords I would dismiss this appeal.

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