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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Chitolie v Chitolie & Anor [2002] EWCA Civ 483 (7 March 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/483.html Cite as: [2002] EWCA Civ 483

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
(MR JUSTICE PUMFREY, MR JUSTICE PARK)

		Royal Courts of Justice Strand London WC2 Thursday, 7th March 2002

Thursday, 7th March 2002

1. LORD JUSTICE CHADWICK: There are before me three applications by Mr Dick Lucien Chitolie. The first application (A3/2001/2275) is for permission to appeal against an order made by Pumfrey J on 8th October 2001. The second application (2001/22/5A) made ancillary to the first, is for that application for permission to appeal be put before the Master of the Rolls, and that the defendants produce their witnesses and an application made for probate. The third application (A3/2002/0341) is for permission to appeal against an order made by Park J on 14th February 2002. The applications are linked in the sense that I am about to describe; and I have directed that they should be heard together.
2. Mr Dick Chitolie is the brother of the late Miss Julietta Christmas. She died on 5th March 2001. At her death she was the registered owner of property known as 30 Girton Road, Sydenham, London SE26. On 13th June 2001 probate was granted out of the Principal Probate Registry of a document purporting to be her last will. That will is dated 28th February 2001 - that is to say, it is dated within the week before her death. The executors named in that will, Mr Andrew Chitolie and Mr Simon Chitolie, are brothers of Mr Dick Chitolie and Miss Julietta Christmas.
3. Mr Dick Chitolie wishes to challenge the will of 28th February 2001. It is not clear what standing he would have to do that. If, as appears to have been the case, the deceased died without husband or issue, but leaving a surviving parent (her mother) then, prima facie at least, Mr Dick Chitolie would not be a person entitled on her intestacy: see section 46(1)(4) of the Administration of Estates Act 1925. Nor, so far as appears from the papers before me, does he seek to propound an earlier will under which he is executor or beneficiary. The nearest that he comes to that (on the material which I have seen) is an assertion that his sister intended that he should be her sole beneficiary.
4. On 5th June 2000 Mr Dick Chitolie lodged with the Principal Probate Registry a probate application form PA 1 and an Inheritance Tax form IT 205. The IT 205 disclosed the deceased's ownership of the house at 30 Girton Road and valued it at £170,000. It disclosed other assets, some household and personal goods and some stocks and shares, together amounting to £5,000. On that basis, prima facie at least, there was no inheritance tax to pay. The application form PA1 disclosed that the deceased had left no husband or issue but that she did leave a surviving parent. There is nothing in the body of PA1 which indicates that the applicant, Mr Dick Chitolie, was a person entitled to a grant of probate or administration. No doubt that would have been investigated in the usual way if he had been asked to attend for interview. But the application was accompanied by a statement signed by Mr Chitolie, in which he said this:

"My sister willed me the house, 30 Girton Road, Sydenham SE26 5DH. My brother Simon claimed he and my other brother Andrew are executors - however they have repeatedly lied to me and showed me a false will after requesting to see this will many times for the past months.

Also I have been told twice that probate has been filed for - to date this is untrue.

Necessary documents and further details will follow soon as possible."

5. Other material in the bundle shows that Miss Christmas was contemplating making a will in 1999 in terms which (save for one clause) were substantially the same as those in the document of 28th February 2001. The only difference is that in the earlier draft there was a direction that her trustees employ a named firm of solicitors, Messrs Amphlett Lissimore. The correspondence between Mr Chitolie and Amphlett Lissimore, and the correspondence which those solicitors have disclosed between themselves and Miss Christmas, confirms that they have no signed copy of any earlier will. So far as it appears from those letters the instructions to prepare a will in 1999 were not pursued.
6. That was the position at the beginning of June 2001. On 25th June 2001 Mr Chitolie wrote to the Probate Registry in these terms:

"I applied for Probate on 5th June, 3 Months after the death of my sister because the supposedly Executors has not applied. After not hearing from the Probate Department, I dropped in to find out whether there's a hold up, today and to my disbelieve, I was given one excuse after other as to why my Application is not being processed.

I am unhappy the way my Application is not being processed although making a Statement to explained the last true will is not available at present, or alternatively that I am next to Kin since my Mother cannot read or write and the fact that I am named in the will, if not the Executor, as well as main beneficiary.

Can the Probate Department expedite my Application in order to deal with my late sister's Estate and fulfil her last wishes.

Enclosed letter to the Solicitors making the will, please note the constancy in irregularities preventing my entitlement."

7. The response to that was a letter of 27th June 2001 from the Principal Registry in which it is stated that a grant had already been issued to the executors named in the will of the deceased, that is Andrew and Simon Chitolie. The explanation given was that a valid sworn will was produced at that time. Mr Chitolie was told that if he was named in that will as a beneficiary it was up to the named executors to distribute the estate in accordance with the wishes of the deceased. The letter concludes with this sentence:

"If you wish to contest the action I would suggest that you take legal advice about doing so."

8. It was in those circumstances that Mr Chitolie made application to the High Court for revocation of the grant of 13th June 2001. He did so in a document which he signed on 1st August 2001, in which he said this:

"1. The Grant ought not to be made because of the Applicant's pending probate Application 719786 filed on the 5th June 2001 prevents any grant.

2. At the time of lodging Application 719786 there was no other Application pending or issued. This was confirmed on the 5th June and 24th May 2001. Written confirmation to the above is now produced and marked with an exhibit 'DLC 1.'"

9. DLC 1 is a letter from the Principal Registry, dated 24th May 2001, confirming that no grant had been issued at that date. The document continues:

"3. The Will proven on the 13th June 2001 is not TRUE and is not the Deceased's last Will. This bogus Will is now produced and marked Exhibit 'DCL2'. Please note the bogus Will is supposedly signed 5 days before the Deceased passed away.

4. The Deceased's last will and instruction to Amphlett Lissimore Solicitors has not been complied with because the Deceased left the house to the Applicant after amending her draft Will in January 2000. This draft Will, invoice and amendments are now produced and marked with Exhibit 'DLC3' containing 8 pages numbered 1 to 8."

10. DLC 3 is the draft which appears to have been sent to the deceased in 1999 (which is a date which it bears) and which contains the provisions to which I have already referred. It does not contain any legacy in favour of Mr Dick Chitolie. It appoints Andrew Chitolie and Simon Chitolie as executors, and it leaves the residue to the survivors of those two brothers and the deceased's mother. So no testamentary document under which Mr Dick Chitolie could claim as principal beneficiary is in evidence in the papers which I have seen.
11. That application came before Jacob J on 2nd and 3rd August 2001. The application was made, I think, without notice. The judge refused it. His reasons appear in his note of refusal of leave to appeal from the order which he made. He said this:

"Mr Chitolie seeks revocation of a grant of probate to his brothers of his sister's will. However he has made no formal application for this and has not served the grantees with any application.

His application therefore cannot succeed. He has been advised that the correct way for revocation is by a formal application to be served on his brothers."

12. Mr Chitolie then made an application by notice dated 13th August 2001, to which his brothers, Simon and Andrew Chitolie, were named as defendants. The relief sought was an order that the probate granted on 13th June 2001, be revoked, and the claimant's application filed 5th June 2001 be granted on the grounds:

"1. In law, no grant where conflicting applications. 2. The will upon the grant was made is bogus. 3. There was no record of any other application at the time the claimant lodged his application."

13. That application of 13th August 2001 came before Pumfrey J on 8th October 2001. It appears from the order which he made that day that the judge heard counsel for the respondents; but there is nothing, on the face of the order, to indicate that Mr Dick Chitolie was present or represented. The order was in these terms:

"(1) that the Application be dismissed without prejudice to any properly constituted contentious probate proceedings he might wish to bring concerning the estate of his deceased sister

(2) that the Applicant do pay to the Respondents their costs of the Application to be subject to a detailed assessment if not agreed."

14. Pumfrey J refused permission to appeal for the reasons which he set out in a note. They read:

"Mr Chitolie should start contentious probate proceedings to set aside existing grant and prove any other will of his deceased sister. The present application is inappropriate and unsupported by any coherent evidence."

15. It is that order which is the subject of the first application for permission to appeal; and it is that application which is the subject of the ancillary application (2001/2275A) requiring an order that the permission to appeal application be put before the Master of the Rolls because there is no judgment.
16. There is, indeed, no transcript of any judgment of Pumfrey J. This Court has made efforts to obtain a transcript. It appears that no recording was made. However, the basis upon which Pumfrey J made the order which he did appears plainly from his memorandum refusing permission to appeal. He thought the application inappropriate and unsupported by any coherent evidence. It is plain from his order that he was indicating to Mr Dick Chitolie that the proper course was to start contentious probate proceedings in the usual form if he wished to challenge the grant of 13th June 2001. I can see no reason why this matter should be put before the Master of the Rolls. The Master of the Rolls would be in no better position to deal with a matter in which there is no transcribed judgment than any other member of this court. He, like any other member or members of this Court, would have to proceed on the basis of Pumfrey J's note which, as I have said, indicates the reasons which led him to make the order which he did.
17. The other element in application 2001/2275A is that the defendants produce their witnesses and probate application in the Registry, because "their witnesses are liars and the application is bogus". The Court of Appeal is not the forum in which to investigate for the first time the question whether a will was validly made or whether an application for probate was made in proper form to the Probate Registry. Nor is it the forum in which to investigate why the grant of 13th June 2001 was made at the time that there was an application by Mr Chitolie, dated 5th June 2001, pending in the Registry. The place for those matters to be investigated is in the High Court at a trial. That is the view that Pumfrey J took when he made the order that he did on 8th October 2001.
18. In those circumstances the application 2001/2275A is refused.
19. The grounds of the proposed appeal against the order of 8th October 2001 are set out in the appellant's notice. The principal ground is that the grant of 13th June 2001 was issued in contravention of section 107 of the Supreme Court Act 1981. The section is in these terms:

"Subject to probate rules, no grant in respect of the estate or part of the estate, of a deceased person shall be made out of the Principal Registry or any district probate registry on any application if, at any time before the making of a grant, it appears to the registrar concerned that some other application has been made in respect of that estate or, as the case may be, that part of it has not been either refused or withdrawn."

20. Prima facie, the application of 5th June 2001 was pending in the Registry at the time when the grant of 13th June 2001 was made. But the critical question is whether that was how it appeared to the registrar concerned, or whether there was some other reason which led him to make the grant which he did - see, for example, rule 5(3)(c) of the Non-Contentious Probate Rules 1987. Those are matters which, if they are to be investigated and challenged, must be investigated and challenged in a probate claim in the High Court.
21. At the time (8th October 2001) when the matter came before Pumfrey J, contentious probate actions were governed by the Practice Direction supplemental to CPR Part 49 (now found in section 2G of Volume 2, Civil Procedure 2001). That position altered on 15th October 2001, when Civil Procedure Rules relating to contentious probate proceedings were introduced. But at the time when this matter was before Pumfrey J a probate claim was defined by paragraph 1.2 in the Practice Direction to mean a claim in respect of any contentious matter arising in connection with an application for the grant or revocation of probate. Paragraph 2.1 required that a probate claim be commenced in the High Court out of Chancery chambers.
22. It seems to me, therefore, that Pumfrey J, faced with a contention by Mr Chitolie that the grant of 13th June 2001 should be revoked, made the only order which he could sensibly make in the circumstances; namely, an order which enabled Mr Chitolie to take the course, provided for by the rules, of commencing a contentious probate action.
23. Mr Chitolie (before me) has not suggested that that was the wrong order for the judge to make. Indeed, he described it to me as "blinding", an expression which I understood to signify approval. But he says the matter is so clear, so plain and obvious, that the court should immediately have revoked the existing grant and, I think, made a new grant to him. That is not the proper role of a judge hearing a summary application, as Pumfrey J was. If there is to be an investigation into the circumstances in which the grant of 13th June 2001 was made, there will have to be evidence from the applicants for that grant. Further, if that grant is set aside then the court will have to consider whether to make some other grant of administration pending suit if satisfied, first, that Mr Chitolie is, indeed, a person who is able to challenge the will - that is to say, a person who has some interest in the estate which enables him to do so; and, secondly, that there is before the court some credible evidence which suggests that there is in fact another will under which he is executor or beneficiary. If there is no basis for challenging the existing will, then a court might come to the conclusion that the proper course was to continue, at least on an interim basis, the grant which had already been made. There is no benefit to the estate in creating a situation in which - now a year after the deceased has died - there is no one in a position to administer this estate.
24. Those are matters which could and should be dealt with in a properly constituted contentious probate action if Mr Chitolie wishes to advance them. What is not a sensible course must be to bring this matter before the Court of Appeal, which could make no order other than the order which Pumfrey J has already made. An appeal from that order would be bound to fail; and so I must dismiss application 2001/2275.
25. In the meantime, however, Mr Andrew Chitolie and Mr Simon Chitolie as the executors acting under a grant, have taken steps in the administration of the estate. In particular, they have sought to sell the property, 30 Girton Road, Sydenham. In order (perhaps) to forestall that sale - and, no doubt, to give effect to the beneficial interest in the property to which he claims to be entitled - Mr Dick Chitolie has gone into possession of 30 Girton Road, Sydenham.
26. The executors have brought proceedings to evict him. Those proceedings were commenced on 3rd October 2001. The executors, as claimants, made a summary application under CPR Part 8 for a possession order. That application came before Master Moncaster on 19th October 2001, that is to say some 10 or 11 days after Pumfrey J had refused to revoke the grant of probate; but at a time when Mr Dick Chitolie could, had he thought it sensible, have commenced contentious probate proceedings and sought interim relief. The position before Master Moncaster was that the claimants were acting under an unrevoked grant of probate. Mr Dick Chitolie had no claim in law or in equity, as things then stood, to occupy the premises. It is not surprising, therefore, that the Master made the order sought on 19th October. Possession was to be given under that order by 2nd November 2001.
27. Mr Chitolie sought permission to appeal from the order of 19th October 2001. That application for permission to appeal came before Park J on 14th December 2001; the property then remaining unsold. Park J refused permission to appeal from the Master's order; but he varied that order so as to extend the date on which possession was to be given to 2nd January 2002. Permission to appeal to the judge having been refused there is no further scope for an application for permission to appeal the Master's order and no such application is before me. The possession order of 19th October 2001 must be regarded as unchallengeable.
28. Nevertheless, an order for possession made in the High Court is enforced by a writ of possession. Where the order has been made under SC 113 no writ of possession to enforce it shall be issued after the expiry of three months from the date of the order without the permission of the court: see paragraph 7 of SC 113. The three-month period from 19th October 2001 expired on 19th January 2002. The claimants appear to have sought permission under SC 113, paragraph 7, from Lawrence Collins J on 29th January 2002. Mr Chitolie was not present on that application. The judge made an order giving permission to seal a writ of possession, directed to the sheriff and requiring the sheriff to give possession to Mr Andrew Chitolie and Mr Simon Chitolie under the order of 19th October as varied by Park J's order of 14th December 2001. A writ of possession was issued pursuant to that order and in due course was served upon Mr Chitolie. He took the view, not having been at the hearing of 29th January 2002 (nor, it seems, being aware of what had occurred) that no permission had been obtained as required by SC 113, paragraph 7. Accordingly, he made application by notice of 11th February 2002 for that writ of possession to be set aside. There were two grounds upon which he made the application. The first was that the permission required had not been granted; the second was that there were irregularities, in that the writ failed to show the correct action number.
29. That application came before Park J on 14th February 2002 in the presence of Mr Chitolie and of counsel for the claimants. The judge set aside the writ of possession, dated 29th January 2002. Mr Chitolie tells me - and there is no reason not to accept it - that he did not know, on 12th February 2002, that Lawrence Collins J had made an order giving permission on 29th January - that is to say about a fortnight earlier. He tells me, also, that although counsel was present before Park J on 12th February 2002, the judge was not told about the order of 29th January. If he had been told about that Park J might well have declined to set the writ of possession aside. On the other hand, he might have taken the view that the other matter referred to by Mr Chitolie in his application of 11th February 2002 was sufficient to justify the course which he took. In any event the position on 12th February was that the order for possession of 19th October 2001 stood, but the writ of possession issued pursuant to Lawrence Colin J's order of 29th January had been set aside.
30. The following day, 13th February 2002, Mr Andrew Chitolie and Mr Simon Chitolie made a further application for a writ of possession pursuant to the order of 19th October 2001. That application came before Park J on 14th February 2002 in the presence of Mr Dick Chitolie, and Park J gave permission for the issue of a writ. That is the order which is now the subject of this application (2002/0341) for permission to appeal.
31. The writ of possession has, Mr Chitolie tells me, been executed this morning; so that the writ is now spent. In effect, Mr Chitolie is asking not only for permission to appeal against Park J's order of 14th February but also to be reinstated into possession. The reasons which led Park J to make the order of 14th February 2002 appear, once again, from his own note made when refusing permission to appeal to this court. I say "once again", because it appears that, once again, there is no transcript. The judge wrote that it was not clear to him that this was the sort of matter which is appealable; but that, if it was, there was no justification for the appeal which could not succeed.

"The respondent/defendant, Mr Dick Chitolie, has been ordered to give possession of the property but has remained in possession. The possession order therefore has to be enforced by writ of possession. The court's permission for the writ to be issued is needed. There is no tenable argument for refusing permission."

32. Mr Chitolie applied to this court for a stay of execution. That was dealt with on paper by Ward LJ on 1st March 2002. It was refused for these reasons:

"The possession order stands - it has not been appealed and it is, therefore, liable to be enforced. Three months having expired, permission is needed. I can see no possible ground to challenge the judge's exercise of discretion in permitting the issue of a writ of possession."

33. The application today is a renewed application for the relief that was refused on 1st March 2002.
34. Mr Chitolie's grounds for appeal can, I think, fairly be summarised as follows. On 29th January 2002 permission to issue a writ of possession was granted by Lawrence Collins J. The writ that was issued pursuant to that permission was set aside by Park J on 12th February 2002. It is, I think, accepted by Mr Chitolie that the likelihood is that Park J was then under a misapprehension because he did not know about the order of 29th January. Whether or not that be so, it is plain, first, that Park J could not have set aside Lawrence Collins J's order of 29th January 2002; and second, that, in any event, he did not purport to do so. The position, therefore, as Mr Chitolie contends, is that there is in existence an order of 29th January giving permission for the issue of a writ of possession, so that Park J, although unaware of the true state of affairs, had no jurisdiction to make another order giving permission for the issue of a writ on 14th February 2002. The current writ which has been executed is a writ issued pursuant to the order of 14th February, and, there being no jurisdiction to make that order, the writ that was executed this morning must be regarded as a nullity; alternatively it must be set aside. The proper course, it is said, is to go back and ask for the issue of another writ under the order of Lawrence Collins J.
35. I can see no reason at all why this court should require the claimants to make a further application for a further writ of possession. The requirement under SC 113 (paragraph 7) is that no writ of possession shall be issued without the permission of the court. The High Court has considered on two occasions, first, on 29th January 2002 and second, on 14th February 2002, whether the order made on 19th October 2001 should now be enforced by the issue of a writ of possession, notwithstanding that the three-month period has expired. On both the occasions that the High Court has considered the point it has decided that a writ of possession should be issued. Mr Chitolie has not put forward any reason of substance why a writ should not be issued - given that the order of 19th October 2001 is not challenged and cannot be challenged. The reason for the delay is explained by the fact that he was seeking to appeal the order of 19th October 2001. Indeed, that order was varied on 14th December 2001 so as to provide for a new date for possession. It seems to me that there would be considerable force in a submission that the relevant date for the purposes of SC 113 (paragraph 7) is 14th December 2001 and not 19th October 2001; but it matters not, permission has been granted on the basis that the delay has been explained.
36. The purpose behind the requirement for permission to issue a writ of possession is that the court needs to be satisfied that the circumstances which led to the order for possession being made have not changed in the period during which it has not been enforced. In other words, it is important that the person against whom the order has been made should have an opportunity to be heard if he wishes to put before the court some change of circumstances which might lead the court to consider whether possession should be enforced. Mr Chitolie has not sought, before me, to suggest that there has been any change of circumstances; nor, so far as I can understand the position, did he seek to do so in front of Park J. His submission is the technical one which I have sought to describe; namely, that there was no jurisdiction to make the order on 14th February 2002.
37. In my view an appeal based on that submission would have no prospect of success. I cannot accept that there is any possibility that this court would think it right to interfere with the order of 14th February 2002.
38. In those circumstances the third application (2002/0341) must be refused.
(Applications refused; no order for costs).