Joshi & Ors v Mahida [2013] EWCA Civ 1327

Case No A3/2013/0848[2013] EWCA Civ 1327
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
JONATHAN GAUNT QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 17 October 2013
B E F O R E:
LORD JUSTICE VOS
Between
ASHWIN JOSHI & OTHERSRespondent-v-
Between
DHANLAXMI KIRIT KUMAR MAHIDAAppellant
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
for The Claimants/Respondents did not appear and were not representedThe Defendant/Appellant appeared in person for in person
J U D G M E N T
[1]This is an application for permission to appeal against an order dated 8 March 2013 made by Mr Jonathan Gaunt QC sitting as a Deputy Judge of the Chancery Division. The judge ordered that a will made by a Mr Mahida dated 17 July 2002 should be rectified under section 20(1) of the Administration of Justice Act 1982. The application for permission to appeal is made by a Mrs Dhanlaxmi Kitir Kumar Mahida ("Mrs Mahida"), who has not attended to renew her application orally as was expected. As will appear from the chronology that I shall shortly recite this is not the first time that Mrs Mahida has made an application and then not attended to support it in court.[2]Before turning to the chronological events that give rise to the application for permission to appeal I should set out the terms of section 20(1) of the Administration of

Justice Act 1982, which provides as follows:

"(1)If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence— (a)of a clerical error; or (b)of a failure to understand his instructions, it may order that the will shall be rectified so as to carry out his intentions."
Chronology[3]By 1998, Mr and Mrs Mahida were joint legal and beneficial owners of a commercial property at 148 to 152 Leytonstone Road ("the property"). On 5 July 1998 Mr Mahida made a will ("the 1998 will") in favour of his wife, the appellant Mrs Mahida. Thereafter, in 1998, Mr and Mrs Mahida separated, he living at 5 Cromwell Road, Forest Gate and she living at 65 Westbury Road, Harlow.[4]Whilst in hospital, on 11 July 2002, Mr Mahida instructed his solicitor, a Mr Markand, to draw up a will leaving his half share in the property to his brother and three nephews, the third to sixth respondents. The solicitor advised Mr Mahida that to achieve this he would have to sever the joint tenancy of the property that he held with Mrs Mahida.[5]On 17 July 2002 Mr Mahida executed a new will, replacing a draft in similar terms dated 12 July 2002, which had had one instead of two executors. I shall call the ‘2002 will’ just that. By the 2002 will Mr Mahida made a gift in clause 3C of "one half of my share in the property" to the respondents. Mr Mahida left the residue to his wife under clause 3D. Clause 4 provided:
"I direct my executors to sell my share in [the property] ... and that the proceeds of sale are to be distributed in equal shares to my brother and his three sons mentioned herein and I further direct that my wife [Mrs Mahida] should not be entitled to any interest in ... my share in [the property] including the business in respect of any of my savings or investments held in my sole name."
[6]On 19 July 2002 the joint tenancy of the property was severed and Mr Mahida's share of the property was registered in his name.[7]On 2 May 2006 Mr Mahida died. Mrs Mahida then issued a probate claim attempting to prove the 1998 will on the grounds that the 2002 will was invalid on grounds of want of capacity and want of knowledge and approval.[8]On 3 December 2010 a judge in the Chancery Division pronounced in solemn form for the 2002 will, rejecting Mrs Mahida's challenges.[9]On 16 December 2011 probate of the 2002 will was granted to the first and second respondent executors. On 12 June 2012 the respondents as executors and trustees of the 2002 will issued proceedings seeking rectification of the 2002 will under section 20(1)(a) of the Administration of Justice Act on the ground that the words "one half of my share" were a clerical error for "my one half share".[10]On 25 June 2012 the appellant acknowledged service and served a defence and counterclaim, saying that the 2002 will constituted a fine or a forfeiture rendered illegal by the Bill of Rights of 1689. On 20 November 2012 Mrs Mahida, the appellant, applied to set aside judgment in the probate action on the ground that she had not been heard. On 29 November 2012 Master Marsh gave directions for the hearing of the respondent's application to strike out her defence and counterclaim. On 3 January 2013 Master Marsh dismissed Mrs Mahida's application to set aside judgment in the probate action and struck out her defence and counterclaim in this action. Again, she did not attend.[11]On 7 March 2013 the judge heard the substantive claim for rectification. Again, Mrs Mahida did not attend. The judge delivered a judgment deciding that Mr Mahida had intended his half share to go to the respondents and that Mrs Mahida should have no interest in it, relying on contemporaneous attendance notes written by Mr Mahida's solicitors. The judge held that the solicitor had made an inadvertent slip and a clerical error by saying "I give one half of my share" instead of "I give my one half share". This, said the judge, was demonstrated by the evidence that he had heard and by the terms of clause 4 of the 2002 will, which I have already recited, which showed that the solicitor had fully understood his instructions to leave Mr Mahida's half share in the property to the respondents. On 8 March 2013 the judge ordered that the 2002 will should be rectified and made no order as to costs.[12]On 28 March 2013 Mrs Mahida filed her appellant's notice. On 17 May 2013 Mrs Mahida amended her appellant's notice, and on 2 July 2013 Arden LJ refused permission to appeal on the grounds that there was no arguable case that the judge was wrong in law and no reasons had been given as to why the appellant was not given notice of the hearing. Grounds of appeal[13]Mrs Mahida has produced some elaborate statements of her reasons for wishing to appeal. I have read them all. They include the grounds in her amended appellant's notice, her grounds of appeal of 16 April 2013, her skeleton argument of 16 April 2013 and her affidavit of 16 April 2013. Cutting the matter short, her three main grounds of appeal seem to me to be properly summarised as follows:(1) There was no fair trial, no notice of the hearing having been given to her and she not having attended;(2) There was a blatant error in the decision which infringes Mrs Mahida's human rights and rights to property, citing Magna Carta and the European Convention on Human Rights and Fundamental Freedoms;(3) The judge was biased against her. Discussion[14]Mrs Mahida, despite her non-attendance this morning, plainly feels aggrieved by the decision that the judge reached but, in my judgment, she has not raised any legitimate attack upon it. I have considered the judgment in detail, which seems to me to be logical, correct in law and firmly based on the evidence that was placed before the court.[15]Mrs Mahida complains that she was not present at the hearing but nowhere does she explain why not. She says that she was not given notice of the hearing by the court but she does not explain why she was not aware of it in the usual way that litigants have to become aware of hearings by following the course of the litigation in which she knew she was involved. She had filed a defence and counterclaim, she had acknowledged service and she attended when she wanted to attend. In the past, as I have previously indicated, Mrs Mahida has repeatedly chosen to make applications and not attend, as the chronology shows.[16]Mrs Mahida's allegation of bias against the judge is wholly without evidential or other foundation.[17]In the circumstances, Mrs Mahida's application for permission to appeal, in my judgment, is wholly without merit and will be dismissed. (Submissions by the claimant)

LORD JUSTICE VOS:

[18]As those in court at 10.00 am will understand, when this matter was called on at that time, Mrs Mahida was not present. Her understanding apparently was that the case would come on at 10.30 am. I am not sure how she gained that understanding since it is clearly written in the list that the case would be heard at 10.00 am. Notwithstanding that mix-up, what occurred was that in the absence of Mrs Mahida I gave a detailed judgment for 15 minutes explaining the background and circumstances to her application for permission to appeal. I formed the view on the basis of the written materials, but not having heard Mrs Mahida orally, that her application for permission to appeal was wholly without merit and should be dismissed.[19]About 30 seconds before I had finished that judgment, Mrs Mahida and her friend, a Mr Nicholls, entered court. I agreed, notwithstanding having given judgment on her matter, to hear the submissions that she wanted to make in support of her application for permission to appeal. As I said in the course of my judgment, Mrs Mahida plainly feels aggrieved by the decision the judge reached.[20]It appears, however, from her oral submissions to me that her main focus of complaint is not really about the decision of Mr Jonathan Gaunt QC in 2013 concerning the rectification of the will, but is about the determination of the Chancery Division in December 2010 to the effect that the 2002 will was invalid by reason of Mr Mahida's lack of capacity at that time. Indeed, Mr Nicholls, Mrs Mahida's friend, whom I allowed to address me, told me that his evidence, to the effect that Mr Markand, the solicitor, had said at the time that Mr Mahida was incoherent in 2002, was not, said Mr Nicholls, properly taken into account in the 2010 judgment. The problem, as I indicated to both Mrs Mahida and Mr Nicholls in argument, is that the 2010 decision as to the validity of the 2002 will is not before the court this morning. I cannot bring it before the court, with the best will in the world, because there is no appeal or application to appeal before me. Such an application for leave to appeal would be way out of time, years after the event. There must, as I said to Mrs Mahida in argument, be finality to this litigation and however strongly she feels about the decision having gone against her, I cannot remedy that perceived injustice.[21]Mrs Mahida also told me that the reason she did not attend the trial before Mr Gaunt was that she had a doctor's letter and she works 7 days a week, 15 hours a day in keeping a shop and does not wish to become unemployed, therefore needs to undertake those efforts. Of course, the court has sympathy for anybody working hard to keep themselves and their family but ultimately she must bear the responsibility for not having attended a hearing.[22]In my judgment, for the reasons I gave earlier today and which will be written down in a transcript and provided to Mrs Mahida, I do not think that the judgment of Mr Gaunt can be challenged; there are no grounds to challenge it, and I have formed the clear view, after careful consideration, that he was right both in fact and in law in the decision that he reached.[23]In the circumstances, therefore, nothing that Mrs Mahida or Mr Nicholls have been able to say to me this morning orally can change the decision I have reached to dismiss Mrs Mahida's renewed application for permission to appeal.[24]I should not leave this judgment without saying that, of course, the court has sympathy for people caught up in a process of which they have little understanding but ultimately Mrs Mahida must understand that her husband's capacity in 2002 was decided a long time ago in December 2010 and simply cannot be reopened, whatever she might like to do.[25]In those circumstances, the appeal will be dismissed and I will direct that a transcript both of this judgment and of my earlier judgment, which she did not hear but will see in writing, be provided to Mrs Mahida.