Rea v Rea [2021] EWHC 893 (Ch)
This was an appeal to the High Court from a decision made by Deputy Master Arkush in September 2019.
The claim was a probate claim brought by Rita, the daughter of the deceased testatrix, Mrs Rea. Rita wished to propound a will executed by Mrs Rea in 2015 (“the Will”). Rita’s brothers, Remo, Nino and David, resisted the claim and sought to challenge the Will on the grounds of:
- Mrs Rea’s alleged lack of capacity;
- want of knowledge and approval, as Mrs Rea spoke limited English;
- undue influence exerted by Rita; and
- fraudulent calumny, again, originating from Rita.
Some weeks before the trial in front of Deputy Master Arkush was due to begin, the Defendants – the brothers – parted ways with their legal representatives. The Defendants made two applications to vacate the trial date to allow them to instruct legal advisers, but were refused. At the start of the trial, as litigants in person, they made an application adjourn the trial in order to seek representation. Their application was refused and they were obliged to proceed as litigants in person. Rita was represented. Ultimately, Deputy Master Arkush found in Rita’s favour.
On appeal, the Defendants were represented. A number of challenges had been made to Deputy Master Arkush’s judgment but permission to appeal was given on one ground solely: the Defendants’ assertion that the trial was unfair by reason of the way it was conducted by the Deputy Master. Counsel for the Defendants put forward numerous arguments, making extensive reference to the trial transcript. In summary, it was alleged that the Deputy Master had treated the two sides unequally, stifled the development of particular points in the evidence, given heavy indications early on of the way he was thinking, acted impatiently – hurrying the Defendants in a way that was unfair and unwarranted, and had displayed hostility towards the Defendants which ‘occasionally suggested an animus’. The Defendants sought a re-trial.
Numerous instances of Deputy Master Arkush’s alleged unfairness were brought to the attention of the High Court. Following Rita’s examination-in-chief, David Rea, the spokesperson for the Defendants, had asked for a 30-minute adjournment in order to come up with questions for the cross-examination. The Deputy Master had refused, allowing him a five-minute break only. Later, the cross-examination was interrupted by the expert evidence of a solicitor and a doctor (both of whom had been asked to attend court at a certain time), then resumed. In the later stage of their cross-examination of Rita, a further 30-minute break requested by the Defendants was refused; they were instead allowed 10 minutes. It was claimed that this rushed the Defendants unnecessarily, given that five days had been allowed for a trial and there was no danger of running over. Additionally, at the conclusion of Day 1, the Deputy Master emphasised to the Defendants that the evidence from the solicitor and doctor was unambiguously against them, and that further days of court time would result in a larger costs bill.
In his judgment of the appeal, Mr Justice Adam Johnson considered the challenges faced by a court of remaining fair to both sides when one party is a litigant in person. The Judge regarded the Supreme Court case of Serafin v. Malkiewicz [2020] UKSC 23 as emphasising that not every error by a judge will result in a finding of unfairness; rather, unfairness will be found where the cumulative effect of many issues means that a judge did not allow the claim to be properly presented, such that he could not fairly appraise it.
Mr Justice Adam Johnson concluded that the Deputy Master had not been unfair. On the contrary, the Judge highlighted instances where the Deputy Master had become involved in the questioning of witnesses in order to assist the Defendants. The Judge acknowledged that, at times, the Deputy Master had displayed impatience, but felt that the impatience was perhaps understandable and that it did not in any case result in unfairness. The Deputy Master’s decision to refuse the Defendants the time they requested to compile questions was stern, but was a case management decision that was within acceptable bounds. It was recognised that the Deputy Master had been faced with a difficult balancing exercise and was obliged to ensure fairness to both sides. Referring to the guidance in Serafin, the Judge held that the Deputy Master was indeed able to appraise the Defendants’ case fairly, in part because he himself had made substantial efforts to ensure that their case was fairly presented.
(Author: Arabella Adams, barrister, 5 Stone Buildings)