Ahmed & Anor v Ahmed

This is an appeal against the order of Miss Recorder McAllister sitting in the County Court at Central London pronouncing against the force of validity of the alleged last will and testament of Mr Nisar Ahmed Choudhry dated 20 September 2005.Mr Choudhry died in Bangladesh on 15 May 2006. The order was made because the Recorder was satisfied that the will was a forgery.

The grounds of appeal in this case are that the Recorder was guilty of a serious procedural irregularity in allowing the claimants to amend their Particulars of Claim on the first day of the trial to include an express allegation that the document purporting to be the deceased’s will had in fact been forged and, having allowed the claimants to make that amendment, had refused the defendants permission to amend their pleadings or to adduce expert evidence tending to support their case that the signature purporting to be that of the deceased was in fact genuine. The defendants also allege that the judge erred in allowing the claimants to adduce evidence from Bangladesh in support of their case and gave them no opportunity to adduce evidence in response. For completeness I should mention that a separate ground of appeal that the judge was wrong to grant the claimants letters of administration in relation to property situated in this country without considering expert evidence on the question whether they were entitled to share in the deceased’s estate under the law of Bangladesh has not been pursued.

The parties to the action are all members of the deceased’s family. The defendants are his five children by his first wife. The claimants are his two children by his second wife. The deceased died possessed of real and moveable property in Bangladesh and real property in this country in the form of premises at 5 Ridley Road, Wimbledon. It originally appeared that the deceased had died intestate and on 6 November 2006 the first and second defendants were granted letters of administration. When they completed the return of the estate information sheet for the Inland Revenue, they stated that the deceased had only five children. It appears that they proceeded to get in and distribute the estate among the five defendants.

On 19 March 2013 the claimants obtained an order that the first and second defendants provide a full inventory of the deceased’s estate. Immediately thereafter the defendants produced a document purporting to be the deceased’s will which was said to have been found by the third defendant in a steel cabinet at a house in Sylhet owned by the deceased. It was said that the will had been found in May 2012, but, whether that was the case or not, it was not produced until March 2013. The production of the will led the claimants to apply to have the letters of administration revoked. The proceedings seeking revocation of the letters of administration were issued in the Family Division of the High Court but were transferred first to the Chancery Division and thence to the County Court at Central London.

In their particulars of claim served on 7 August 2013 the claimants alleged that the defendants had failed to make any distribution to them. No allegation was made at that stage that the will was a forgery, but from as early as 1 May 2013 the claimants’ solicitors made it clear in correspondence that its validity was not accepted. They said they were considering instructing a handwriting expert. The will had apparently been witnessed by two Bangladeshi lawyers, Mr Hossain and Mr Safdar. In an affidavit dated 7 August 2013 Mr Hossain said that, despite what appeared to be his signature on the will, he had not in fact signed it. Mr Safdar in an affidavit also dated 7 August 2013 said that he had never known the deceased and had not witnessed the will, which must therefore be a forgery. Those affidavits were filed on 13 March 2014 in opposition to the defendants’ application for summary judgment, and a list of issues prepared for that hearing included the issue “whether the will was made by the deceased or was a forgery”. At that stage the claimants appear to have been relying solely or primarily on the evidence of Mr Hossain and Mr Safdar in support of their case.

On 21 March 2014 the matter came before HHJ Dight on the defendants’ application for summary judgment. That application was dismissed and the judge gave directions for preparations for trial. Paragraph 15 of his order records that, since it was agreed that no expert evidence was required, neither party should have permission to rely on expert evidence without further order. Pursuant to HHJ Dight’s order, a pre-trial review was fixed for 5 September 2014. Shortly thereafter on 4 April 2014 the claimants served amended particulars of claim pursuant to the permission granted by HHJ Dight on 21 March. They included for the first time an allegation that the will had not been duly executed and witnessed, but no further particulars were given and forgery was not expressly alleged. In their amended defence and counterclaim served on or about 1 May 2014 the defendants alleged that the will had been duly executed and witnessed by two Bangladeshi lawyers as required by law.

On 12 June 2014 Mr Hossain swore a second affidavit in which he said that he and Mr Safdar (who had since died) had in fact witnessed the execution of the will by the deceased. He said that he had been contacted by the first defendant and as a result he had reflected upon the matter. He had also spoken to Mr Safdar and could now confirm that both of them had in fact witnessed the will. He explained his former affidavit by saying that he was 69 years old and could not always remember things that had happened some years before.

On 17 June 2014 the claimants served their list of documents. It described various documents tending to show that the stamps affixed to the will had not been issued at the time when it purported to have been made. I think one can fairly assume that those documents were inspected in the usual way and that if the defendants had wished to investigate the matter they could have done so.

On 5 September 2014 the matter came before Mr Recorder Chapman, QC for the pre-trial review. The defendants applied for permission to adduce expert handwriting evidence but their application was dismissed, not on the grounds that such evidence was irrelevant but on the grounds that the application had been made too late. Nonetheless, the defendants did go ahead and instruct a handwriting expert who produced a report supporting the conclusion that the signature on the will was indeed that of the deceased. On 2 October 2014 the defendants made another application to the court for permission to adduce expert handwriting evidence. That application was dismissed by HHJ Dight on 14 October.

The trial was fixed to begin on 27 October. Both sides were represented by solicitors and counsel and both counsel filed skeleton arguments. Among the issues identified by the defendants’ skeleton argument were the following: in paragraph 1, that “although the claimants have not pleaded forgery they have alleged and produced hearsay evidence that the will could not have been made by the deceased”; and in paragraph 28 they recognised that the authenticity of the deceased’s signature was in issue.

The trial began on 27 October 2014. At the outset counsel for the claimants asked the Recorder for permission to amend the particulars of claim to allege that the will had been forged. He did so because it had been drawn to his attention by HHJ Dight on an earlier occasion that forgery ought to be specifically pleaded as required by the Civil Procedure Rules. It is fair to say that the application was not strongly resisted, although counsel for the defendants did seek permission to amend the defence in response. Permission to amend the defence was granted and an amendment which did no more than put the matter in issue was approved. The defendants made a further application at that stage for permission to adduce expert handwriting evidence but that was again dismissed.

I have described the history of the proceedings at some length because it is in my view highly relevant to the issues that arise on this appeal. The transcript of the proceedings on the first day of the trial shows that the application for permission to amend the particulars of claim took up very little time. It extends to only three pages of the transcript. There was little argument and almost no objection from counsel for the defendants. Nonetheless, it is now said that the judge was wrong to allow the amendment because she did so on the erroneous basis that the allegation of forgery was implicit in the particulars of claim as they already stood and that she acted unfairly in refusing to allow the defendants to amend their defence, in refusing to allow them to adduce expert handwriting evidence and in not giving them an opportunity to call evidence to deal with the Bangladeshi stamp question.

It will be apparent from what I have already said that the appeal proceeds on the basis that, by allowing the amendment to the particulars of claim the Recorder allowed the claimants at the beginning of the trial to put forward a new case which raised issues of fact which the defendants had not had a proper opportunity to deal with and so put them at a serious disadvantage. If that had indeed been the case there would have been a strong argument that the defendants had been denied a fair trial, but in my view to describe it in those terms is to ignore the procedural history to which I have referred. The fact is that almost as soon as the will was produced, the claimants through their solicitors made it clear that they disputed its authenticity. In opposition to the defendants’ application for summary judgment, they filed the affidavit of Mr Safdar and the first affidavit of Mr Hossain which together made it clear that the validity of the will was being challenged. Moreover, it is clear that the defendants themselves understood that the authenticity of the testator’s signature was being challenged because they asked Mr Recorder Chapman at the pre-trial review for permission to call a handwriting expert. There can only have been one purpose in doing so: to assist in establishing (if the report were favourable) that the signature of the testator was genuine and the will validly executed.

The remaining course of the proceedings serves only to reinforce that conclusion. The repeated attempts to obtain permission to call a handwriting expert, which failed first before Mr Recorder Chapman, QC and later before HHJ Dight, can be explained only by the recognition on the part of the defendants that the authenticity of the testator’s signature was in issue. The same goes for the stamp issue which had emerged when the documents relating to it were disclosed in June 2014, some four months earlier. The defendants did not seek to call factual or expert evidence in response to those documents; nor did they complain that they needed more time to deal with the material.

Mr Brown submitted that the evidence properly emerged only when witness statements were exchanged in September 2014 but the defendants made no attempt then or thereafter to object to the introduction of that evidence; nor when the claimants made their application to amend the pleadings did the defendants object that they would have to deal with new material on which they had not had time to take proper instructions.

In my view the Recorder was right to regard the amendment as no more than a formality which brought the pleadings into line with the claimants’ case as it had been, and was known to have been, for at least the previous six months. I do not think that the authorities on relief from sanctions to which reference was made in the defendants’ skeleton argument have any bearing on this case. There was no sanction in the sense in which that expression is normally used; nor was there any application for an extension of time. There was simply an application for permission to amend the particulars of claim, a course which the court has power to take at any stage in the proceedings in accordance with well-established principles. I strongly deprecate attempts to force every application to the court for an indulgence of one kind or another into the straitjacket of relief from sanctions. To do so merely leads to excessive formality and satellite litigation of a kind which interferes with the proper conduct of proceedings and causes parties to incur unnecessary costs.

Mr Brown pressed us with the submission that following the decision of this court in Swain Mason v Mills & Reeve[2011] 1 WLR 2375, the Recorder ought to have required the claimants to produce a properly drafted proposal for the amendment they sought to make and that a failure to do so was a procedural irregularity of such significance that it ought to lead to the judgment’s being set aside. On further reflection, however, he accepted that that would be appropriate only if the absence of a draft amendment had caused prejudice to the defendants.

In my view the decision in Swain Mason does not drive one to the conclusion for which Mr Brown contended. Applications to amend the pleadings are made at different stages in the proceedings for different purposes in different cases. The court’s observations in Swain Mason were clearly directed to the case in which an application for permission to amend is made at a late stage with a view to raising a new point of substance. In such cases it is clearly important that the amendment be clearly drawn and with full particulars to enable the court and the other parties to understand the nature of the case that the applicant wishes to make. Sometimes, as in this case, the amendment is essentially formal. In such cases judges must be free to make whatever order is in the interests of justice in the light of all the circumstances and to deal with the matter as seems most effective given the state of the proceedings.

Despite Mr Brown’s submissions to the contrary, the defendants in my view were not in the slightest bit taken by surprise in this case. One can see that from reading the transcript of that part of the proceedings which dealt with the matter. The Recorder did not allow the amendment because she considered that the allegation of forgery was implicit in the particulars of claim as they stood; she allowed it because it reflected the case which the claimants, to the knowledge of the defendants, had been preparing to make for the previous six months. There were in those circumstances good reasons in my view for allowing the application and the Recorder was right to do so.

I deal next with the allegation that the Recorder failed to give the defendants permission to amend their defence. In my view this ground of appeal is misconceived. It is clear from the transcript of the proceedings that the Recorder did in fact give the defendants permission to amend their defence. It is also clear that they wished to do no more than make a formal amendment to put in issue the express allegation of forgery. In those circumstances there is nothing in this point.

I turn then to the allegation that the Recorder erred in failing to allow the defendants to call expert handwriting evidence. If the claimants had been advancing a new case not previously foreshadowed, it would have been very difficult for the Recorder to give permission to amend without giving the defendants an opportunity to call evidence relevant to the new issues. However, that was not this case. The defendants had been aware since March 2014 that the authenticity of the testator’s signature was in dispute. That, after all, was why they had made the application at the pre-trial review to call expert handwriting evidence. They did not appeal against the dismissal of that application or against HHJ Dight’s dismissal of the next application made a month later. Nothing in fact had changed. The issues were the same and the defendants knew what they were. They could have applied for permission to call expert handwriting evidence when the matter was first before HHJ Dight for directions but they did not do so. By September the fact was that they had simply left it too late. To have allowed the defendants to call expert evidence on the first day of the trial would inevitably have led to an adjournment of the proceedings. In my judgment, given the history of the matter, the Recorder was clearly entitled to refuse the application.

Finally, there is the question of the Bangladeshi stamp evidence. The defendants had been aware of the issue since disclosure had been given in the preceding June and had had plenty of time to consider what course to take and whether to call evidence to deal with the point. Moreover, a brief perusal of the transcript makes it clear that no application was made for permission to call factual or expert evidence to deal with the stamp point at any stage of the proceedings, and it is not open to the defendants on appeal to criticise the Recorder for failing to give relief which they did not apply for.

In those circumstances it is perhaps unnecessary to refer to the fact that when she came to give judgment the Recorder considered that the evidence of the two so-called witnesses to the will was so unsatisfactory that she was not persuaded that it had been validly executed for that reason alone.

For all these reasons I would dismiss the appeal.

I agree.