Fairness is a concept that almost everyone can understand and, for judges, it is the lodestar which guides every piece of litigation. In the context of a bitterly contested inheritance case, the Court of Appeal found that a judge had, despite his best intentions, mistakenly failed to achieve the standard of fairness required.
By her final will, a woman left the entirety of her estate to her daughter, disinheriting her three sons. In challenging the validity of the will, the sons asserted, amongst other things, that their sister had exerted undue influence on their mother and dishonestly poisoned her mind against them. Their arguments were, however, rejected by a judge, who admitted the will to probate.
The sons’ first appeal against that outcome was dismissed but, unusually, the Court agreed to hear a second appeal. It found that, as a result of a genuine mistake, the judge had prevented the sons from cross-examining the sister on certain key issues in the case. He did so on the erroneous basis that the sons, who presented their own case without legal assistance, had already questioned the sister on those matters and should not be permitted to go over the same ground again.
It was agreed that the judge had not been biased against the sons. He had shown no hostility or ill will towards them and had taken a number of steps to assist them in presenting their case. In upholding the sons’ appeal, however, the Court found that his error had caused them serious prejudice and that the conduct of the hearing therefore did not meet the requirements of fairness.
In reluctantly directing a retrial of the case, the Court urged the siblings to make every effort to settle their differences without the need for further litigation. The case had been a tragedy for all concerned. The legal costs incurred to date had already seriously depleted the tangible benefits deriving from the relatively modest estate and a further trial might well exhaust them altogether.