Boudh v Boudh & Anor

This is an application for permission to appeal the judgment and order of Evans-Lombe J made on 9 October 2006. The sole question I have to decide is whether an appeal would have any real prospect of success. Chadwick LJ refused permission on the papers. At that stage the case was advanced on the basis that the judge had not really applied the principles in Wintle v Nye [1959] 1WLR 284. It is of course the fact that the Court of Appeal will only grant permission to appeal where there are issues of fact if it is satisfied that there is a real prospect of showing that the judge was wrong.

Today, Mr Croally has argued the matter, I think really in rather a different way from the way he has been putting it, or additionally to the way he has been putting it. What he has said today is that the judge’s essential findings depend upon his acceptance of the evidence of Mrs Ohri, but then he made his own modification of that evidence.

Mrs Ohri initially said she had not attended a meeting on 16 November when two documents appeared to have said to have been produced: the three-page will, found to be a forgery, and the one-page will, which the judge upheld. She changed her account of events and said she had been present, but then her story was that only the three-page will had been made. The judge, it is submitted, reconstructed what happened, that there was a one-page will made and following that there were questions of whether a translation was needed and there was a re-typing.

Mr Croally says that is all not only fantastic, but was not the evidence of Mrs Ohri. It was wrong for the judge to reconstruct for himself what he thought happened. It is in that sense, given the bizarre circumstances here, that there was a misapplication of the principle of Windell v Nye.

I am very reluctant in a case such as this, particularly given the amount in the estate of about a quarter of a million pounds to give permission to appeal, but I think there is enough in what Mr Croally has submitted, contrary to the view I had when I came into court. I must give permission to appeal.

I am reluctant also because I do not believe it would be in the interests of either side of the family for this dispute to go on. Both sides need to be really grown up and mature about this. What they should do, if they had the real courage, is to find somebody who they both trust to say what should happen to the money and spend no more on lawyers, but that is a matter for them. Even if you win you are sometimes really a loser. I will grant permission to appeal.