Ellis v Ellis

I have an application before me by Mr Edward William Ellis for permission to appeal from a decision of Deputy Master Christie (“the Master”). The Master gave his decision on 31 July 2007, although his order was not formally drawn until 3 July 2008.

The background is that there was an order in the action made by HH Judge Norris QC (now Norris J) on 12 September 2006.This included an indemnity costs order against Mr Ellis in the action (which was a probate action concerning the estate of Mr Ellis’ father). It was a consent order made following settlement of the case.

Pursuant to that Order, the Master conducted a costs assessment. He dealt with Points of Dispute which had been raised in the way in which such points are raised in costs assessments concerning the first Defendant’s costs. The Master assessed those costs at £85,533.31 and ordered Mr Ellis to pay that amount.

Mr Ellis has filed an Appellant’s notice in respect of the Master’s order. It was filed on 14 August 2007.

The matter came before me in the dismissal list on a number of occasions as a result of the absence of the filing of any transcript of the decision. Mr Ellis says that he was experiencing difficulties obtaining the transcript. I myself asked the defendants’ solicitors to provide any note which they might have, Mr Ellis not having attempted in that way to comply with the Practice Direction in relation to documents required for appeal.

Eventually, a transcript was provided. There was no judgment as such; instead, the Master dealt with each element of dispute as he went along. I read that transcript in its entirety, before refusing permission to appeal on paper on 31 July 2008. I have read it again in full for the purposes of the present renewed oral application for permission to appeal.

The oral hearing was fixed by Mr Ellis himself with the Chancery Listing Office for a date some weeks ago. Mr Ellis did not attend. The hearing was re-listed for hearing on 21 November 2008. On that occasion, Mr Ellis did attend and presented his application. He attacked the decision of the Master principally on the basis that he had taken no account of what Mr Ellis considers to be the fraudulent and abusive (in the sense of abuse of process) way in which Mrs Ellis and her lawyers conducted the litigation, and fraud and dishonesty on the part of Court officials, judges and others. Even if the conduct of Mrs Ellis and her lawyers was not dishonest, it is said that their conduct was unreasonable and that they should be deprived of their costs on that basis. Mr Ellis had not brought to court the documents on which he relied to establish that allegation and the Court file (in relation to the costs assessment) was not in front of me. I directed Mr Ellis to identify which of the documents which had been placed before the Master he now relied on in support of his case. As to that, he has provided me a copy of the Points of Dispute against Mrs Ellis’ Bill of Costs and a single page document. That document is head “Schedule of documents requested by Mr Justice Warren”. It lists two items: the Points of Dispute and “Documents in schedule to bundle stamped 29/8/2007 pages 1-141”. This is the bundle which he lodged in connection with his appeal, and was already before me. I am not sure whether all of these documents were before the Master. Mr Ellis has not identified which of those documents he particularly relies on other than an application for an attendance allowance for his father in 1999 and a letter to his father’s general practitioner from a Dr Rice, a consultant psychiatrist who saw Mr Ellis’ father on 19 April 2000. I have read all of the documents in that file and take them into account in making my decision as if I had admitted them in evidence on this appeal. I do not, however, formally admit them.

Mr Ellis did not, before me, attack the Master’s decision on any particular item of account on the basis that the work said to be done was not in fact done, or that the time spent on any item was excessive, or that the rate of charging was exorbitant, or anything of that nature. I am not sure if that is part of his case; I suspect that he does remain part of his case, otherwise he did not need to provide me with a copy of the Points of Dispute. I shall assume that he does attack the Master’s decision on that basis. Such an attack is hopeless. The Master gave consideration to each item and, so far as I am able to detect, there is nothing on which he could be criticised let alone be said to have allowed amounts which were outside the range of fees properly chargeable, particularly bearing in mind that this was an indemnity costs order so that questions of proportionality do not arise: see CPR 44.4. The costs must of course have been reasonably incurred and have been of reasonable amount, but as the order was on the indemnity basis the Master would have resolved any doubt which he may have about reasonableness in favour of the receiving party: see CPR 44.4(3).

Mr Ellis however has a more fundamental attack to make on the costs assessment. His grounds of appeal are stated as follows, I quote:

These brief grounds are fleshed out in about 3 pages of typescript running to 22 main paragraphs. He says that the Master did not apply law of good practice when deciding reasonableness and as a result “he allowed the costs of fraudulent exploitation of contested probate proceedings”.

I do not propose to address at all Mr Ellis’ wide ranging allegations of fraud, corruption and perversion of the course of justice on the part of the police, court officials and the judiciary. Those are absolutely baseless and hopeless allegations on the basis of any evidence which has been placed before me. The only area where Mr Ellis conceivably has a point which needs addressing in the context of the application for permission to appeal relates to the reasonableness of the costs in the light of certain factors which he identifies, including allegations of fraud against the first defendant, Mrs Ellis, his stepmother and her lawyers.

To understand Mr Ellis’ point, I need to say a little about the underlying action. In it, Mr Ellis sought a grant of probate of a will of his father dating from 1990. His father had made another will in 2004 the validity of which Mr Ellis challenged. Mrs Ellis was a beneficiary under both wills which were, so far as concerns her, in similar terms. She might also have been able to launch a claim under the 1975 inheritance Act had probate already been granted. A hearing was fixed in front of HH Judge Norris QC for 3 days in September 2006. On the first day, the case settled. Financial provision was made for Mrs Ellis who for her part agreed that the 1990 will should be admitted to probate; she did not in the light of the settlement, see the need to proceed with a dispute over the validity of the 2004 will, a dispute which turned on her late husband’s testamentary capacity in 2004. As part of that settlement, Mr Ellis agreed to pay Mrs Ellis’ costs on the indemnity basis. The order was subject to approval by the court of the settlement on behalf of minors and unborns, approval which was subsequently given. So far as the grant is concerned, I do not know the position and nothing turns on it for present purposes.

Mr Ellis told the Master that he had had a discussion about costs with HH Judge Norris QC who told him that he would be able to take any points about the reasonableness of costs on the detailed assessment hearing. That was not in evidence before the Master, it was simply what he was told; there was no transcript before the Master and the solicitor representing Mrs Ellis had no recollection of such a discussion. The Master was concerned about the transcript point but Mr Ellis did not ask for an adjournment. Mr Ellis has not produced a transcript of what was said to HH Judge Norris QC for the purposes of the current application for permission to appeal.

Turning then to Mr Ellis grounds of appeal, he says that there was suppression of evidence about his father’s mental capacity; he says that Mrs Ellis never genuinely intended to promote the 2004 will; he alleges that the failure by her solicitors to negotiate was driven by a desire to rack up fees; and he says that settlement was at the last minute because up until then the lawyers had been insisting on a release by Mr Ellis of claims which might be brought against them in the context of the litigation, a requirement which was ultimately dropped, allowing a settlement to be reached. It is said that Mrs Ellis’ solicitors acted improperly in disputing the need for representation of the minor and unborn beneficiaries of the Wills for the purposes of approving any settlement reached by Mr Ellis and Mrs Ellis. It is said that the solicitors refused to negotiate when all that Mrs Ellis herself wanted was to settle; indeed, he says that she never intended actually to appear in court as a witness. So the whole litigation was, to use my word, a charade.

These allegations against Mrs Ellis and her solicitors are at least ones which I am able to understand as allegations. But Mr Ellis also alleges fraud against the solicitors who, he suggests, conspired with the Law Society which was prosecuting disciplinary proceedings against him. He also alleges that court officials have fraudulently taken steps, or refused to take steps, to frustrate his access to the Court of Appeal in relation to his dispute with Mrs Ellis and other matters. In particular, he says he has been blocked from pursuing an appeal against the order of HHJ Judge Norris QC, a consent order which he now says was procured by fraud and undue influence.

As to fraud, Mr Ellis has provided me with a great number of pages of typescript prepared by him in which he alleges fraud under a number of heads resulting in the 2006 Order and conspiracy by a large number of people, including Court Officials, the police and various members of the judiciary (myself not excepted) to pervert the course of justice. One element of that fraud is, it is said, suppression by Mrs Ellis or her solicitors of a particular document which has a material bearing on the case. The dispute about the 2004 Will related to the capacity of Mr Ellis’ father to make it. Mr Ellis has shown me the application for an attendance allowance which I have already mentioned and which he says shows that his father lacked capacity at the time it was made in 1999. How, he asks, can it be the case that his father then had capacity in 2004. That, of course, is the issue which HH Judge Norris QC would have tried if the matter had not settled. I can well see that the application would have been deployed in any contested hearing, but an argument that it, or the letter from Dr Rice which I have mentioned, either alone or together proved that Mr Ellis’ father lacked testamentary capacity either in 2000 or in 2004 would have been completely unsustainable.

In any case, by the time of the settlement, Mr Ellis had been provided with a copy of the application for an attendance allowance. He could not possibly rely on the alleged suppression of that document as influencing his decision to enter into the settlement. Indeed, its production could only have strengthened Mr Ellis’ case and yet Mrs Ellis continued with her defence.

Next, Mr Ellis says that Mrs Ellis never intended to go into the witness box or actually to bring the case to hearing. The 2004 Will was, he says, invalid and the contents of the application form for the attendance allowance proves it. However, what Mrs Ellis would or would not have done is a matter of assertion by Mr Ellis and whatever he may say, the position of the solicitors acting for Mrs Ellis was that they were indeed ready to proceed to trial on her behalf to establish the 2004 will as they informed the Master at the hearing.

My conclusion is that it is quite impossible for Mr Ellis to maintain on the basis of the application form that Mrs Ellis was making a fraudulent claim.

The flavour of Mr Ellis’ written submissions can perhaps be captured by reading parts of section 8 of the Appellant’s notice where Mr Ellis applies for (a) a stay of execution and (b) an order that “There be an enquiry into the truth of circumstances to establish whether there has been perversion of the course of justice and contempt of court, what damage has been caused and the identity of the damaged parties.”. Let me quote, from section 8 parts A and C, his reasons for those applications:

There is plenty more in the same vein in the many pages of written material which Mr Ellis has presented to the court.

Returning to the present application, the Master could, of course, only deal with the assessment on the basis of the evidence before him. As to the documents before the Master, there were the Points of Dispute and a bundle prepared for the hearing and the other documents in the court file. Some at least, of the documents in the appeal bundle which I have referred to, were in the papers before the Master; and I shall proceed on the footing, even if it incorrect, that all of the documents in the appeal file were available to the Master. The Points of Dispute commenced with a long – 10 pages – complaint about the courts, the judiciary and Parliament. It is difficult to discern from this any reason why this particular defendant, Mrs Ellis, should be deprived of her right to costs other than assertions which begin at the bottom of page 6 relating to allegations of conspiracy to pervert the course of justice. Mr Ellis says he was able to prove perjury against the 12 witnesses who supported Mrs Ellis’ case, and in particular Mrs Ellis herself. He makes allegations about Mrs Ellis insisting on settlement terms which the court had no power to order without giving an absent party a right to be heard. This I understand to be a reference to the need for minors and unborns to be represented in order to produce a binding settlement, something which was in fact subsequently done, the order of HH Judge Norris QC having been made subject to approval on behalf of such persons. Mr Ellis also says, as I have already mentioned, that Mrs Ellis never intended to pursue her case to prove the 2004 Will and was unwilling to go into the witness box.

A major difficulty facing Mr Ellis is that he produced no evidence before the Master to substantiate any of his allegations made in the Points of Defence other than the bundle of documents prepared for the hearing or otherwise in the court file. It was not enough for Mr Ellis to come along to the Master and make these serious allegations without evidence. He did not ask for an adjournment to obtain it or to enable cross-examination of the solicitors or his step-mother to take place. By the time the matter came before HH Judge Norris QC, the parties were ready for trial and whatever Mr Ellis may say, the position of the solicitors acting for Mrs Ellis was, as I have already mentioned, that they were indeed ready to proceed to trial on her behalf to establish the 2004 will.

I have read the appeal bundle and the court file, much of which is correspondence between Mr Ellis and Mrs Ellis’ solicitors. I am not going to go through it in this judgment. However, what I say about it is that is shows those solicitors acting throughout in a temperate and responsible manner in the face of a barrage of irrelevant and sometimes unjustifiably hostile material. It is hardly surprising to my mind that Mrs Ellis pursued this case in order to obtain some finality, either by agreement or by a decision of the court. A failure to reach a settlement prior to the hearing date is not to be laid at her door any more than at that of Mr Ellis. In particular, I do not think that it is fair to criticise the way in which the representation of minors and unborns was dealt with. There is nothing in the bundles which comes anywhere near establishing any of the allegations of fraud or even lack of reasonableness which Mr Ellis makes. In the absence of any other substantial evidence, his appeal stands no prospect of success.

In any case, since Mr Ellis has consented to an order that he pay costs on the indemnity basis, any doubt about the reasonableness of any costs must be resolved in favour of Mrs Ellis. Even if Mr Ellis had persuaded me that there was a doubt about whether the costs had been reasonably incurred, which he has not, I would have to resolve that doubt against him. There is, in my judgment, no prospect of success in an appeal by Mr Ellis on the basis of the conduct of the proceedings by Mrs Ellis and her solicitors or on the basis of any fraud by her or them.

Accordingly, I refuse permission to appeal.

I record that this application is wholly without merit. I do so in the light of the immoderate approach which Mr Ellis has taken to this application in attacking the Government, Parliament and on a wholesale basis, the judiciary as he has done on previous occasions. In that context, I observe that, in the course of his submissions, Mr Ellis referred to an appeal which he is making to the Court of Appeal from a decision of the Divisional Court. This relates to an application brought by him concerning his permanent suspension from the Roll of Solicitors as the result of Law Society disciplinary proceedings against him. As it happens, I had a copy of the decision of the Divisional Court which I myself had been intending to raise with Mr Ellis at some time during his application but he raised the matter first. He appeared to find it suspicious that I should have had a copy of this decision, no doubt regarding me as part of the judicial conspiracy against him. I suspect that I was already guilty of this conspiracy in his eyes even before he discovered that I possessed this judgment. Be that as it may, it can be seen from the judgment of Leveson LJ in the Divisional Court, whether or not the actual decision is upheld on appeal, that the present case is not the first time when Mr Ellis has adopted the immoderate approach which I have described and explains why I say “as he has done on previous occasions” in the first sentence of this paragraph.