Judgement on forged will case (1)

B E T W E E N: ANTONY JAMES ROBINSON Claimant AND (1) ALAN CARTLEDGE (2) JOHN SOUTHERN SPENCER (3) ANTHONY MICHAEL DAVIES (4) VERA CATHERINE ELIZABETH CARTLEDGE Defendant

JUDGMENT

1. Introduction

1. This is now an action for professional negligence. John Spencer is a solicitor. He is the senior partner of Spencer Davies, a firm practising in Station Road, Grassington. On 10th June 2003 he received instructions to prepare a will for Linda Cartledge who was suffering from a brain tumour and was due to have an operation on 16th June 2003. The will was executed following a meeting attended by various members of the family on 12th June 2003.

2. Under the terms of the will Linda Cartledge's estate is divided between her husband - Alan Cartledge - and her son (by a previous marriage) - Antony Robinson. Alan Cartledge was to receive her share in a Caravan Park in Dunoon, Scotland, in a property in Cape Town, South Africa and the whole of the residue of her estate. Antony Robinson was to receive all her investments bank accounts and other savings and life insurance policies. Linda Cartledge subsequently died on 3rd October 2003.

3. The will made no express reference to any interest that Linda Cartledge might have had in a property known as Limber Cottage, Middle Lane, Kettlewell. Antony Robinson complains that John Spencer was negligent in drawing up the will. Antony Robinson contends that Linda Cartledge was entitled to a 60% beneficial interest in Limber Cottage and that she expressly instructed John Spencer to include a bequest of that 60% share to him.

4. John Spencer denies that he was negligent. Although he accepts that there was some mention of Limber Cottage at the meeting on 12th June 2003 he contends that he was expressly instructed not to include it as a bequest in Linda Cartledge's will. Thus the failure to incorporate any bequest was in accordance with her express instructions.

5. If, contrary to his primary case, John Spencer is held to be negligent he contends that Antony Robinson suffered no loss. His principal point is that Linda Cartledge made a new will on 26th September 2003 some 7 days before she died. Under that document the whole estate passes to Alan Cartledge. Antony Robinson counters this argument by contending that the September will is not valid. Firstly he contends that it is a forgery. Alternatively he contends that if Linda Cartledge signed it she did not know and approve its contents.

6. Thus, the principal matters to be determined are first whether John Spencer was negligent in relation to the preparation of the June will and secondly whether the September will is valid. Antony Robinson needs to succeed on both points in order to succeed in this litigation.

2. Representation

7. Antony Robinson was represented by David Matthias QC instructed by Walker Foster of Skipton. John Spencer and Anthony Davies were represented by Graeme McPherson instructed by Bond Pearce of London. Both Counsel produced full and helpful skeleton arguments and conducted their respective cases with great expertise.

8. I was also provided with electronic copies of the pleadings and the witness statements. This has proved invaluable in preparing this judgment.

9. I am grateful to all concerned for their assistance in what has been a by no means straightforward case involving serious allegations against a number of those involved.

3. The Facts

3.1. The Principal Characters

10. Vera Cartledge is the mother of Alan Cartledge; she is now 87 years old. She is plainly well - known in Kettlewell. She lived in Limber Cottage until it was sold in December 2004. She was described by one of the witnesses as "the salt of the earth". She was plainly well-liked by both Linda Cartledge and (until this dispute) Antony Robinson. Indeed Linda Cartledge stayed with her at Limber Cottage on her last visit to Kettlewell in September 2003. Even though Antony Robinson had his own house in Kettlewell about 5 minutes from Limber Cottage, Vera Cartledge would prepare an evening meal for him at Limber Cottage. Antony Robinson described Vera Cartledge as being like a second mother to him.

11. Linda Cartledge was born in about 1950. She was married to Alan Robinson in 1973. They had one son - Antony Robinson - who was born on 7th July 1975. There is no doubt that, at least until her terminal illness, she was very fond of her son. Witnesses described the relationship as being entirely normal and loving. This is supported by some of the letters and cards I was shown in the course of the hearing.

12. Linda Cartledge divorced Alan Robinson in 1991 and married Alan Cartledge on 7th March 1993. Between May 1993 and June 2000 they occupied Market House, Kettlewell, a property owned by Vera Cartledge. According to Alan Cartledge the occupation was rent free. In any event they ran a tea room from those premises.

13. In or about June 2000 Market House was sold by Vera Cartledge for £200,000. The proceeds of sale were used by Linda and Alan Cartledge to purchase Glenfinart Caravan Park at Ardentinny near Dunoon in Argyll. The Caravan Park was vested in their joint names.

14. Linda Cartledge was described by witnesses as a strong character who knew her own mind. Sadly in October 2001 Linda Cartledge developed a brain tumour. She had treatment for this involving in-patient treatment at a number of hospitals in Yorkshire. Part of the treatment involved a serious brain operation on 16th June 2003. Before the operation she was told that she had only a 50% chance of recovery. Linda Cartledge died from her tumour on 3rd October 2003 after collapsing outside Morrisons on 29th September 2003 just after a course of radiotherapy had commenced.

15. It is common ground that Antony Robinson was unable to cope at all well with his mother's impending death and that he did not see a lot of her in this period. One of the issues in this case is what effect this had on Linda Cartledge in the period before she died.

16. John Ulliott and David Nairn live in Stirling. In addition they have a holiday caravan at Glenfinart Caravan Park. They bought it in 2000 and would go to the caravan every week-end in the summer and somewhat less frequently in the winter. They struck up a friendship with Linda and Alan Cartledge when they bought the Caravan Site. After about 18 months Linda and Alan Cartledge would ask them to keep an eye on the caravan site if they went away. However at no time were they employed to look after the Caravan Site. According to John Ulliott he was offered such a job but turned it down. John Ulliott had been a nurse in the 1970s. In the summer of 2003 he was asked and agreed to nurse Linda Cartledge during the last few months of her life. He was officially employed by the Cravendale Health Authority to look after Linda Cartledge. He says that during this time he became very close to Linda Cartledge. Indeed he says he was closer to Linda Cartledge than to Alan Cartledge. John Ulliott accompanied Linda Cartledge on her visit to Yorkshire in early September 2003.

17. John Ulliott and David Nairn assert that they witnessed the will allegedly signed by Linda Cartledge on 26th September 2003. On behalf of Antony Robinson it is said that this will is a forgery. He asserts it was forged as a result of a conspiracy between them and Alan Cartledge probably concocted on or about 11th December 2003 following a phone call between John Spencer and Alan Cartledge.

18. John Spencer qualified as a solicitor in 1974. The majority of his practice is residential conveyancing. Additionally, he oversees the Probate Department of his firm and which prepares approximately 150 wills per year.

19. He became a Partner in a firm in Bradford, Sugden and Spencer, in 1975. That Partnership was dissolved in 1994 when he became a sole practitioner. In 2002, he took on a Partner, Antony Davies, and the firm became known as Spencer Davies.

20. He is also very active in the sporting and local communities. He is a former Captain of the England Rugby Football Team. He is the Trustee of several local bodies, until recently the Chairman of Governors at my local Grammar School in Skipton and the President of a local Rugby Club, Wharfedale in Division 3.

21. Robert Foster is a partner in the firm of Walker Foster, the solicitors who have acted for Antony Robinson since the middle of December 2003. From an early stage Robert Foster formed the view that the September wills were forgeries and that Alan Cartledge, John Ulliott and David Nairn were in some way involved in the forgeries. Thus on 9th February 2004 he drove unannounced from Skipton to Stirling and, without informing them that he was a solicitor or the purpose of his visit, secretly recorded an interview with John Ulliott and David Nairn at their home at about 6 p.m. Furthermore Robert Foster has since then written a number of strongly worded letters in which he has made no secret of his view that the September wills are forgeries and that one or other of the persons he believed carried out the forgeries would end up behind bars. It is no part of my task to comment on the propriety or otherwise of Robert Foster's actions on 9th February 2004. The transcript of the interview has been admitted without objection. It is, however, plain from the correspondence to which I was referred at the trial that Robert Foster's strongly held views have coloured his objectivity in acting as Antony Robinson's solicitor. That lack of objectivity may account for the fact that this wholly uneconomic piece of litigation continued after August 2006.

3.2. Limber Cottage

22. Both Limber Cottage and Market House were originally owned by Vera Cartledge's parents. By 1993 Vera Cartledge had become entitled to Market House and her brother - John Woodrup was entitled to Limber Cottage. John Woodrup lived in America and came to an arrangement with his sister that, subject to being paid for his interest, Limber Cottage would be registered in Vera Cartledge's sole name. A restriction was placed on the register to prevent Vera Cartledge disposing of her interest without John Woodrup's consent.

23. It is common ground that a total of £45,000 was paid to John Woodrup between 1994 and 2002. It is further common ground that the first £10,000 of that £45,000 was provided by Linda Cartledge out of her savings. The remaining £35,000 was paid by Linda and Alan Cartledge jointly out of joint savings.

24. There is little doubt that both Linda and Alan Cartledge took the view that they had some beneficial interest in Limber Cottage. The precise extent of that interest is however less clear. As will be seen below when they consulted solicitors in Dunoon they appear to have told him that they each had a 50% share in Limber Cottage. Shortly before the will of 12th June 2003 was signed they agreed their interest at 60% for Linda Cartledge and 40% for Alan Cartledge. These assessments, however, ignore the rent free occupation of Market House, the £200,000 received by Linda and Alan Cartledge following the sale of Market House and any other rights of occupation or otherwise that Vera Cartledge may have had in Limber Cottage.

25. Some time in 2000 Vera Cartledge took tax advice in relation to a possible transfer of Limber Cottage. According to John Spencer she was advised not to proceed.

3.3. Other wills or instructions

26. It is not known whether Linda Cartledge made any wills before 1992. On 24th February 1992 (that is to say after she had divorced Alan Robinson and before she had remarried Alan Cartledge) she made a will in which she left her whole estate to Antony Robinson.

27. On February 2002 both Linda and Alan Cartledge saw a solicitor at the offices Stewart & Bennett in Dunoon. They gave him a list of their assets including a 50% share in a house in Yorkshire. Following that meeting the solicitor prepared draft wills for them to execute. Under the terms of the draft will Linda Cartlege left to Antony Robinson the half share of the house in Yorkshire, the balance of her building society account and the proceeds of a life insurance policy. The residue was to be left to Alan Cartledge. The draft will was never executed.

28. On 21st April 2003 Linda Cartledge wrote to Stewart & Bennett with revised instructions. Under those instructions she left her half share of her house in South Africa to Alan Cartledge and the remainder of her estate including specifically her half share in Limber Cottage to Antony Robinson. Stewart & Bennett took no action on this letter. According to a file note on their file at the end of May 2003 Linda Cartledge sent a messenger with an instruction that the letter of 21st April 2003 was to be disregarded and that she wished to revert to her 2002 instructions. Following two conversations with Alan Cartledge on 3rd June 2003 Stewart & Bennett sent out the 2002 wills again for execution . They were not executed.

3.4. Instructions for the June 2003 will.

29. It is common ground that Alan Cartledge telephoned John Spencer on 10th June 2003 and gave instructions for the drafting of the will. John Spencer has 2 file notes of the events of 10th June 2003. One is a manuscript note of what was said during that and a subsequent conversation; the other is a typed up note made the following morning.

30. He deals with it in paragraphs 10 and 11 of his witness statement: 10. I became involved in this matter on 10 June 2003 when Alan Cartledge telephoned me from the hospital in Leeds. He told me that he was sitting with Linda Cartledge who was seriously ill with a suspected brain tumour. He also told me that Linda was due to have an operation on 16 June 2003 and wanted to make a Will before she did so. Alan Cartledge gave me detailed instructions for what Linda would want to be included in the Will. I was reluctant to proceed on that basis because it is obviously not good practice to take Will instructions from anyone other than the Testator. I wanted to do what I could to try and help the family however, because they were well known to me and this was obviously a bit of an emergency. I therefore said that I would be prepared to help, provided that I could have a word with Linda over the telephone to confirm the instructions which Alan had given to me.

11. I assume that Alan then handed the telephone over to Linda Cartledge because I then spoke to her for a few minutes. I read out to Linda the instructions which Alan had given to me on her behalf. She then raised the subject of Limber Cottage, as far as I was concerned, completely out of the blue. She told me (which in fairness I already knew) that Limber Cottage belonged to Vera Cartledge. She reminded me that she had helped pay off the mortgage on Limber Cottage and said that as a result of that, she thought that Antony should eventually have an interest in Limber Cottage. She told me that she had discussed this with Alan Cartledge and that he agreed to this in principle. However, she also said that she knew that this would not be able to happen immediately. She told me that the family wanted to look at the situation because there were "other considerations". I knew that Alan Cartledge had previously sought advice on a potential transfer of the property and that the family had been advised against it. It therefore did not surprise me to hear that the family wanted to pause and consider the position. Linda was quite clear to me that she expected Antony to receive a share of Limber Cottage in due course but that she did not want this dealt with in the Will.

31. A number of points are made about this. The handwritten note of the conversation makes no reference to Limber Cottage. It does contain a detailed list of her assets not including Limber Cottage. The typed up note, however contains the following:She explained that she had helped to pay off the mortgage on Limber Cottage to a relative of Vera Cartledge and therefore thought it was appropriate that her son Antony should eventually have an interest in Limber Cottage. She said she fully understood that this could not happen immediately but that she hoped that provision could be made in the future. 32. John Spencer was cross-examined about this in some detail. It was specifically suggested that Linda Cartledge did not use the word "eventually". John Spencer was clear that she did. He then said that Linda Cartledge went on to say that she did not want this dealt with in the will.

33. In paragraph 38 of his witness statement Alan Cartledge corroborates John Spencer's version of this conversation. When he gave evidence, however, Alan Cartledge had little or no recollection of the details of the conversation.

34. According to John Spencer's hand written file note there was a further conversation with Alan Cartledge. In that conversation they discussed a proposed transfer of Limber Cottage to himself and Antony Robinson. John Spencer made a note that he was to "Beware tax implications for Mrs C"

3.5. The making of the June will

35. John Spencer had a meeting in London on Friday 13th June 2003 and was planning to go to London the previous evening. However he appreciated that the making of Linda Cartledge's will was urgent so he re-arranged his schedule and agreed to take the early morning train to London. He thus agreed to see Linda Cartledge at Limber Cottage at about 6 - 6.30 p.m on 12th June 2003.

36. Linda Cartledge decided that she would like to have Alan Robinson present for the meeting. Accordingly before John Spencer arrived there were present at Limber Cottage Alan Robinson, Vera Cartledge, Linda and Alan Cartledge. It is common ground that there was a discussion before John Spencer arrived. It is equally common ground that Limber Cottage was discussed and it was agreed between Linda and Alan Cartledge that Linda Cartledge would be entitled to a 60% share. There is a dispute between Alan Robinson and Alan Cartledge as to whether the discussion was heated or whether Alan Cartledge in some way coerced Linda Cartledge into agreeing. Alan Robinson considers that Linda Cartledge agreed to transfer her share in the caravan park and the house in South Africa in return for a 60% share in Limber Cottage.

37. John Spencer arrived for the meeting at about 6.30 p.m. He had with him the will he had prepared based on the instructions. It contained bequests for Antony Robinson of the investments, the pension policies and life insurance but no bequest of Limber Cottage. Alan Cartledge was the residuary legatee. The meeting lasted for about 40 minutes. There is an important conflict of evidence between John Spencer and Alan Robinson as to what happened at the meeting. There is a typed file note of the meeting dictated by John Spencer on the train to London the next morning.

38. In his witness statement John Spencer makes it clear that he has a strong independent recollection of the meeting. He first asked Linda Cartledge if she wanted to go through the will in private. She declined; she was happy for all those present to remain. John Spencer satisfied himself that Linda Cartledge fully understood the instructions she was giving him and had capacity to make the will. He did not form the view that there was any hostile atmosphere between any of the people present. He was not aware of any argument.

39. John Spencer sets out his recollection in paragraph 21 of his witness statement: I went through the Will with Linda Cartledge. She repeated the instructions which she had given to me over the telephone on 10 June 2003. Because it had not been mentioned, at some point Alan Robinson asked about Limber Cottage. This was one of the only things said by him during the meeting - he was otherwise very quiet. Linda told us that Limber Cottage had been discussed and that they were going to deal with it at a later date. She repeated that there were other issues to be dealt with. She specifically told me that she did not want Limber Cottage dealt with in her Will and I followed her instructions. To have done otherwise - or to have pressed her to change her mind - would have placed me in a position of conflict which I was not prepared to contemplate. Linda Cartledge was very clear that this was not something she wanted to deal with at this time. She gave me the impression that she was happy that the family would abide by her wishes in the future, and therefore that Antony would receive a share of Limber Cottage. I thought it most likely that this would happen by Vera Carledge leaving it to Antony in her Will. I have obviously spent a long time thinking about that meeting and I am trying to be as precise as I can about the words which were used. I am satisfied that at the conclusion of the meeting there was an agreement that Antony would receive Linda's share in Limber Cottage at some point in the future but that would not happen by Linda's Will and it would only happen after further enquiries were made. No discussions took place about the nature of those enquiries, when they would me made or how the family intended to actually effect a transfer to Antony.

40. Much of this is confirmed in the file note: I had the engrossment of the will with me and I read it out making it clear which interests would go to Antony and which would go to Alan Cartledge. There was a discussion about the transfer of Limber Cottage and it was agreed that Vera Cartledge would transfer 60% of her interest to Antony Robinson and 40% of her interest to Alan Cartledge in due course but that she would need to make enquiries about the tax implications. Linda Cartledge expressed her satisfaction about the contents of the will and she then signed it.

41. In cross-examination John Spencer confirmed much of this evidence. He said he had a clear recollection of the meeting. My note of the crucial part of his evidence reads: I was clear that they were likely to make arrangements for that i.e. the transfer of Limber Cottage to be done in the future He i.e. Antony Robinson was in a hopeless position but Linda Cartledge knew that full well I said "everything else" goes to husband Alan I did not say Limber Cottage goes to Alan Cartledge She had expressly said she did not want it dealt with in the will Alan Robinson then raised the aspect that Limber Cottage had not been dealt with When Alan Robinson raised the point I was going to answer when Linda Cartledge said we have talked about this and we are not going to do this in the will Alan Robinson said if it is going to be dealt with later - fine

42. Alan Robinson gave a somewhat different account of the meeting. In his witness statement he puts the position thus:7. Mr. Spencer then arrived at about 6.30 p.m. I knew that he was to come. On arrival he was informed by Alan or Linda that there had been a discussion about Limber Cottage and that it had been agreed that Linda had a 60% share which she wished to leave to Antony. Mr. Spencer had brought a Will with him which at some point he read out and then he asked Linda to sign it, which she did. I assumed, as obviously did Linda, that the Will took care of the Limber Cottage issue bearing in mind that Mr. Spencer had been told not only that Antony was to have Linda's share as previously discussed and as confirmed at the meeting, but also that her share was to be 60%. By "previously discussed" I mean between Alan Cartledge and John Spencer on the telephone before that day's meeting. I am no expert in Wills and did not spot that the Limber Cottage issue had not been dealt with at all. Neither did Linda.

43. In evidence Alan Robinson's recollection about what was said in the meeting was somewhat vague. He could not now remember precisely what was said by John Spencer. Indeed at one stage he gave the impression he was not even sure that the document being considered was a will. He was thus unable to confirm the extent to which John Spencer went through the will with Linda Cartledge. He did, however, remember that John Spencer had been told that Linda Cartledge was to have a 60% share in Limber Cottage that she wanted to leave to Antony Robinson. Initially he said "We assumed it was to be in the will". Then he said that Linda Cartledge had said that she wanted it to go in the will.

44. He agreed that he had not commented on the fact that Limber Cottage was not in the will and not drawn to the attention of John Spencer any tension that he had noted between Linda and Alan Cartledge.

45. In paragraph 43 of his witness statement Alan Cartledge gave an account supporting that of John Spencer:43. During the conversation which Linda had with John Spencer the subject of Limber Cottage came up. It may even have been Alan Robinson who brought it up, checking what Linda intended to do about it. I assumed therefore that Linda must have told him - as she told me - that she considered she had interest in Limber Cottage. Linda told John Spencer and Alan Robinson that she had contributed towards the payment of the mortgage over Limber Cottage. She said she wanted Antony to have her share in Limber Cottage in the future. We discussed the situation and it is true to say that in principle it was agreed that at some stage in the future part of Limber Cottage would be transferred to Antony. It was agreed by both Linda and my mother that enquires would need to be made in relation to other issues' which would need to be resolved, basically the tax position. Linda made it clear to John Spencer and Alan Robinson that she did not want Limber Cottage to be included in her Will at that time. She also suggested that she trusted my mother to give Antony either a share in the cottage or part of the proceeds of sale in due course. Of course, she was right to trust my mother in that way because that is exactly what has happened. It should be borne in mind that Linda was very preoccupied with the operation she was about to have, which she thought she may not survive. She wanted her affairs in order but this did not mean that she was so bothered about sorting out Limber Cottage that she would have insisted that my mother take tax advice and deal with it within 24 hours. She trusted my mother and I to make sure that Antony got part of Limber Cottage in the end and I am sure that this would have happened even without this case.

46. The effect of this evidence was substantially weakened when Alan Cartledge stated in evidence that he had now no recollection of what was said at the meeting. In paragraph 42 of his witness statement made some 7 months ago he had stated that he had a clear recollection of the meeting.

3.6. Events between June and September

47. In their witness statements and elsewhere Alan Cartledge and John Ulliott assert that during this period Linda Cartledge became increasingly disappointed with Antony Robinson as a result of his apparent lack of feeling towards her. This appears for example in paragraph 58 and paragraphs 23 to 26 of their respective witness statements. I shall not lengthen this judgment by setting out all the matters in detail. Mr Matthias QC described this evidence as "the terrible lie" because it defiled Antony Robinson's memory of his mother.

48. Antony Robinson sought to refute this evidence by calling evidence from a number of residents from Kettlewell who had some knowledge of the family. Much of this evidence was to the effect that Antony Robinson and Linda Cartledge were very close to one another and that the relationship was perfectly normal and that this continued till at least late August 2003 (the scarecrow festival in Kettlewell).

49. There are disputes of detailed fact between the parties over a number of matters; these include the question of how long Antony Robinson spent with his mother when she came up to see him at work in his field in early September 2003, whether it was John Ulliott or Antony Robinson who brought his mother back to Limber Cottage from the field; how long Antony Robinson spent with his mother on her birthday, the extent to which Antony Robinson saw his mother when he went to Limber Cottage for his evening meals, and the number of times he visited her in hospital or spoke to her when she was in Scotland. In the end I do not find it either necessary or desirable to resolve any of these detailed issues.

50. A number of matters do emerge from the evidence: 1. There are a number of documents from which it is clear that Linda Cartledge did love Antony Robinson. A good example is the card at page 71 of the bundle but there are others.

2. Antony Robinson agreed in evidence that he found Linda Cartledge's last 3 months very difficult to cope with. He said he was very scared she was going to die. He had trouble dealing with it and tried to shut himself off from it. He agreed that he only spoke to Linda Cartledge occasionally on the phone when she was in Scotland and did not visit her there in the last 3 months.

3. Although Linda Cartledge appears to have realised that Antony Robinson was having difficulty in coping with her death she does appear to have been making excuses for him not making more contact. Not only does this appear in John Ulliott's witness statement but it also appeared from the evidence of Mrs Briggs.

4. Although John Ulliott and David Nairn are, of course, attacked as being untruthful it is right to say in the transcript of the secret recording by Robert Foster on 9th February 2004 John Ulliott made the point that Linda Cartledge was upset that Antony Robinson had not visited her in Scotland (see pages 84 - 85). Thus "the terrible lie" (if it is a lie) is a lie told by John Ulliott from February 2004 before he was, as Robert Foster put it, coached or primed in his account of what happened.

3.7. The September wills

51. There are essentially 4 sources before me in which accounts are given by John Ulliott and David Nairn of the making of the September wills. First there is the transcript of the secret recording made by Robert Foster on 9th February 2004 when he visited their home in Stirling unannounced at about 6 p.m. Second there are notes and draft (unsigned) witness statements made by John Spencer when he interviewed them in August 2004 for the purpose of this litigation. Technically those documents might have been privileged from disclosure but they have been disclosed and formed part of the evidence in the case. Third there are detailed witness statements in these proceedings and fourth there was the evidence given at the trial by John Ulliott, David Nairn and Alan Cartledge.

52. Regrettably there were technical difficulties in receiving evidence from John Ulliott and David Nairn. Shortly before the trial I acceded to an application that they be permitted to give their evidence by video link from Scotland. When I made the order I had no reason to believe that there would be any problems in establishing such a link. In fact despite two separate attempts over two days on two different systems it proved impossible to get any worthwhile picture that would enable me to assess their demeanour. Furthermore the sound kept breaking up. In the end therefore it was necessary to abort the video link and for their evidence to be given by telephone conference. Fortunately there were no problems with this technology and I was able to form a very clear impression of their strongly expressed views of the allegations that were being made against them.

53. There are differences between the three written sources that are before me. Not surprisingly Mr Matthias QC (and Robert Foster) have made much of the differences in support of the allegation that the September wills are forgeries. Mr McPherson, however points to the consistency of other aspects of the accounts.

54. The most detailed account is in paragraphs 29 - 38 of John Ulliott's witness statement. This has to be read subject to the caveat in paragraph 1 that his memory of the less important details may not be perfect. I shall not lengthen this judgment by setting out the evidence in full. It may be summarised thus: 1. On 25th September 2003 Linda Cartledge came down to his caravan. David Nairn was with him. She produced a pack of wills in a cellophane wrapper. John Ulliott does not know where she got them from.

2. John Ulliott did not, at that stage want to get involved in preparing a will. He tried to discourage her by asking her why and telling her that she should think things over. He therefore fobbed her off by telling her he was too busy. He asked her to leave the pack with him and that he would read the instructions.

3. On 26th September 2003 Linda Cartledge came back to the caravan and was adamant she wanted a will to be made. John Ulliott describes her as being cool calm and collected. She handed John Ulliott a piece of paper in her handwriting stating what she wanted to say. She insisted that John Ulliott transfer the information onto the will forms.

4. John Ulliott did not know whether to use the Scottish or English will form so decided to use one of each. He filled in the will forms writing down her instructions from the piece of paper. The relevant part of each will form reads: I GIVE MY HALF SHARE IN GLENFINART CARAVAN PARK MY HALF SHARE IN LIMBER COTTAGE AND MY HALF SHARE OF 88 RAATS DRIVE SOUTH AFRICA, MY LIFE INSURANCE AND PENSION FUND AND ALL MY SAVINGS TO MY HUSBAND ALAN CARTLEDGE She also gave the residue of her estate to Alan Cartledge.

5. Linda Cartledge then signed the wills. Initially she signed in pencil. David Nairn noticed she was signing in pencil and told her she ought to sign in pen. Linda Cartledge then signed in ink. On one will she went over the pencilled signature then rubbed out the pencil. On the other she rubbed out the pencil first and then signed in ink.

6. Both John Ulliott and David Nairn were present and witnessed Linda Cartledge's signatures. Linda Cartledge took one of the wills with her and left one with John Ulliott to keep.

55. As I have said there are differences between the witness statement and the other sources. When he spoke to Robert Foster Mr Ulliott was unable to give any dates for the discussions with Linda Cartledge about the wills. When he spoke to John Spencer he said that there were 2 previous discussions on 19th and 22nd September. There are differences in the accounts given as to what happened to the wills after Linda Cartledge allegedly signed them on 26th September 2003. John Ulliott did not mention the fact that the will was signed in pencil to Robert Foster - (he was not in fact asked); the account given in the witness statement is more detailed than that contained in the draft statement prepared by John Spencer.

56. Both John Ulliott and David Nairn were cross-examined with vigour by Mr Matthias QC. The discrepancies between their statements were put to them. They were asked why they did not suggest that Linda Cartledge went to a solicitor in Dunoon, and why Alan Cartledge was not present. It was suggested to them that they were complicit in a conspiracy to forge the will and to deprive Antony Robinson of his rightful inheritance. Both John Ulliott and David Nairn forcefully maintained their stance that they had indeed witnessed Linda Cartledge sign the wills on 26th September 2003. Suggestions to the contrary were "rubbish". John Ulliott pointed out that he was a close friend and the carer of Linda Cartledge and would have no reason or incentive to forge Linda Cartledge's will.

3.8. Events between Linda Cartledge's death and December 2003

57. As already noted Linda Cartledge died in Yorkshire on 3rd October 2003. Following her death Alan Cartledge visited his sister and brother in law in South Africa. He paid for John Ulliott and David Nairn to come with him. It was his view that John Ulliott had worked tirelessly over the preceding months and he wanted to do something for them to repay that kindness.

58. There are, as I have noted, somewhat different accounts as to how Alan Cartledge became aware of the September wills. He says that John Ulliott told him about them when in South Africa. When he got back from South Africa he found one of the wills in the bungalow in the caravan park; John Ulliott gave him the other.

59. John Ulliott's recollection about this was vague. He initially said that he had given it to Alan Cartledge within 2 or 3 weeks of the death. In evidence, however, he said that he mentioned the wills either when he came back from or when he was in South Africa.

3.9. Events between 10th and 15th December 2003.

60. Alan Cartledge called in on John Spencer on 8th October 2003 to inform him of Linda Cartledge's death. He did not mention the September wills on that occasion.

61. Antony Robinson visited John Spencer at his office on 9th (probably) or 10th December 2003. Alan Robinson visited John Spencer twice on 11th December 2003. Between those visits John Spencer left a message on Alan Robinson's answer-phone. Alan Cartledge spoke to John Spencer twice on 11th December 2003. On 15th December 2003 John Spencer had a meeting with Alan and Vera Cartledge at Limber Cottage.

62. There are some disputes between John Spencer, Antony Robinson and Alan Robinson as to what was said. John Spencer made a short file note of the meeting with Antony Robinson and a further detailed two page file note of the events between 11th and 15th December 2003. That file note was made on 15th December 2003 following the meeting at Limber Cottage. In addition I have a verbatim transcript of the answer-phone message.

The visit by Antony Robinson

63. According to John Spencer's file note Antony Robinson called in to see what progress had been made. There was a discussion about Limber Cottage. Antony Robinson said that his mother had made a substantial monetary contribution to Limber Cottage. He understood that it was to be transferred into the joint names of himself and Vera Cartledge (40% to Antony Robinson and 60% to Vera Cartledge). When he gave evidence John Spencer confirmed that that was what had been said.

64. In his witness statement Antony Robinson said that John Spencer read the will to him; it was apparent that he would not get a share of Limber Cottage; so he reported matters to his father.

65. When he gave evidence Antony Robinson went considerably further than his witness statement. He described the file note as "all lies". He said that John Spencer read the will and that he was not mentioned in it. He came away very disappointed.

66. On any view this version of events must be wrong. Antony Robinson was a significant beneficiary under the June will and John Spencer did not discover about the September wills until 11th December 2003.

Alan Robinson's visits on 11th December 2003

67. John Spencer's records show that Alan Robinson visited at 9.16 a.m and 4.36 p.m on 11th December 2003. The answer-phone message was timed at 12.52 p.m. Alan Cartledge called John Spencer at 10.45 a.m and 4.23 p.m 68. John Spencer's file note does not distinguish between the 2 meetings or the 2 telephone calls. His file note may be summarised as follows: 1. Alan Robinson was looking after Antony Robinson's interests as Antony Robinson may not understand the situation and was not as articulate as his father.

2. He was concerned to see whether any steps had been taken to transfer Limber Cottage into the joint names of Antony Robinson (60%) and Alan Cartledge (40%). John Spencer explained that no action had been taken as he was awaiting information with regard to the tax implications of the transfer.

3. Alan Cartledge phoned to give information about the estate. John Spencer asked whether he should start the procedure about Limber Cottage. Alan Cartledge said he was undecided partly because he was concerned about his mother's security for the house. Alan Robinson suspected that Alan Cartledge had changed his mind. There was no trust between them.

4. John Spencer agreed with Alan Cartledge to meet with him and his mother on 15th December.

5. Alan Cartledge informed John Spencer that there was another will but he was unsure of its validity. John Spencer realised the importance of this. He said he could not advise until he had seen it. If it was valid it should be submitted for probate.

69. Alan Robinson's recollection of the meetings is somewhat different. He said that the note was not accurate. He said that when he visited John Spencer in the morning John Spencer read him the June will. He asked him where was the reference was to Limber Cottage in the will. John Spencer was vague and said that that he would have to consult his notes and get back.

70. As already noted John Spencer did ring Alan Robinson at 12.52 p.m (i.e. after his first conversation with Alan Cartledge). The transcript reads:I have looked into this right now. I do recall this arrangement that Limber Cottage would be 40% to Alan Cartledge and 60% to Antony, there is no doubt about that. Then I have got in my notes underneath it a query as to whether it is to be done by will through Vera Cartledge which seemed to be the preferred option at the time rather than to transfer into their joint names because of the tax implications. By coincidence Alan Cartledge rang me to-day, I approached the subject and said how did he wish me to deal with it and he is going to talk to me about it on Monday. But though he perfectly accepts this is what was discussed at the meeting, but as you anticipated, he may be able, may be wanting to slide out of it one way or the other but what I am going to do is meet him on Monday anyway with Vera Cartledge and I will obviously use my strongest influences to go along with the position as discussed at our previous meeting.

71. Alan Robinson's recollection of the second meeting was that John Spencer told him that he had had a call from Alan Cartledge who had said that there may be another will in Scotland.. Alan Robinson's reaction was that if Alan Cartledge produced another will it would be a forgery.

72. John Spencer's recollection was substantially in accordance with the file notes though he acknowledged that they were not contemporaneous in the sense that they were made some 4 days after 11th December. On some points his recollection was vague. For example he could not initially remember if there was one or two telephone calls from Alan Cartledge. He accepted that Alan Robinson was cross that Limber Cottage had not been transferred though he did not accept that he said it ought to have been referred to in the June will.

The meeting at Limber Cottage on 15th December 2003

73. John Spencer's file note of the meeting with Alan Cartledge and Vera Cartledge on 15th December is extremely detailed extending to nearly a page. It was also made on the same day as the meeting and thus was contemporaneous. It may be summarised: 1. The most important aspect was to resolve the question of the new will. John Spencer asked for as much information as possible.

2. Alan Cartledge gave an account of the execution of the new will consistent with that being given to-day: 1) Linda Cartledge had been angry because Antony Robinson had not been in touch on a regular basis since her operation. She had expressed her views both to him and John Ulliott 2) She had obtained a blank will form from a shop, completed it and had it witnessed by John Ulliott and David Nairn.

3. John Spencer advised that if the new will was valid the old will would be irrelevant. Alan Cartledge said he would still be prepared to allow Antony Robinson to have the proceeds of the pension policies and the 2 savings accounts 4. John Spencer noted obvious conflict between Alan Robinson and Alan Cartledge.

5. Alan Cartledge said he would bring the new will to him on 5th January 2004. He would make no further decisions till then. He stressed that the new will was not his idea; it had not been done in his presence; he did not know about it at the time.

6. Vera Cartledge stated that she was concerned about Limber Cottage and was not at that time prepared to transfer Limber Cottage into the names of Antony Robinson and Alan Cartledge. She agreed that the situation was unfortunate but she thought the situation had changed.

7. John Spencer said he might have to withdraw from the case.

74. Alan Cartledge brought the September wills to John Spencer on 5th January 2004.

3.10. Initial involvement of Robert Foster

75. Very shortly after the meeting with John Spencer on 11th December 2003 Antony Robinson and/or his father consulted Walker Foster of Skipton and saw Robert Foster. On 19th December 2003 Robert Foster had a long conversation with John Spencer. There is an uncontroversial file note made by Robert Foster of this conversation. In paragraphs 1 and 2 of the file note Robert Foster deals with the making of the June will. Limber Cottage is referred to in paragraphs 3 and 5. Robert Foster was told: 1. that there was a CGT issue about Limber Cottage and that he was awaiting instructions about achieving the 60% gift to Antony Robinson 2. that Vera Cartledge was still prepared to leave a 60% share of Limber Cottage to Antony Robinson. This would need some kind of deed followed by a Will.

76. He was also told about the complication of the September wills.

77. On 19th December 2003 correspondence started between Robert Foster and John Spencer. It is not necessary to lengthen this judgment by setting it out in detail.

78. As already noted, on 9th February 2004 Robert Foster decided to do some detective work. Thus, together with Richard du Pré he drove up to Scotland and arrived, without an appointment at about 6 p.m at John Ulliott and David Nairn's home in Stirling. He did not inform them that he was a solicitor; he did not inform them that he was acting for Antony Robinson or Alan Robinson; he did not inform them that he was recording the interview. In fact they discovered that the interview was being recorded when the recorder started beeping at the end of the tape.

79. There is a minor conflict of evidence as to precisely how Robert Foster gained entrance and as to his manner in the interview. It is, however, plain from the transcript that David Nairn invited both Robert Foster and Richard du Pré into the house and also offered them a cup of tea. I am not in the circumstances satisfied that Robert Foster forced his way into the house or that the interview was carried out in an aggressive manner. On the other hand neither John Ulliott nor David Nairn had any time to prepare for the interview or, more importantly, to refresh their memory as to relevant events. Furthermore they were not shown any of the relevant documents. In those circumstances criticisms of the account given in this interview have to be treated with considerable caution.

3.11. Sale of Limber Cottage

80. On 9th December 2004, that is to say after these proceedings were commenced Vera Cartledge moved to a lodge on the Glenfinart Caravan Park and completed the sale of Limber Cottage. According to the completion statement the sale price was £180,000 and the net proceeds of sale amounted to £179,153.49 81. Pursuant to an agreement between the parties' respective solicitors, 60% of the net proceeds of sale (£107,492.09) were placed in a joint deposit account pending the resolution of the dispute. Pursuant to an authority signed by Vera Cartledge the remaining 40% (£71,661.40) was paid to Alan Cartledge's account with Barclays Bank, Skipton.

4. The proceedings

82. These proceedings were issued in the High Court in London on 23rd August 2004. Initially there were only three Defendants, Alan Cartledge, John Spencer and his partner. In a nutshell Antony Robinson claimed: 1. that the September wills were forged and/or 2. that Linda Cartledge did not know and approve the contents of the September wills.

3. that the June will was signed as a result of the undue influence of Alan Cartledge and/or 4. that the June will was a conditional will and/or 5. that the June will should be rectified to include a gift of Linda Cartledge's interest in Limber Cottage.

6. that John Spencer was negligent in failing include or to advise Linda Cartledge to include a gift of her interest in Limber Cottage in the will.

83. In January 2005 Alan Cartledge filed a lengthy Defence and Counterclaim. In it he claimed that the September wills were the last true wills of Linda Cartledge. He denied the allegations of forgery, want of knowledge and approval and undue influence. He dealt in detail with the history of Limber Cottage. He accepted that Linda Cartledge and he had paid off the debt to John Woodrup but made the point that there had been rent free occupation of Market House and that the whole of the proceeds of the sale of Market House had been paid to himself and Linda Cartledge. Thus he put in issue the extent of Linda Cartledge's interest in Limber Cottage. He expressly denied that Linda Cartledge intended or instructed John Spencer to include a gift of her interest in Limber Cottage to Antony Robinson.

84. Vera Cartledge was added to the proceedings following a directions hearing before Deputy Master Behrens on 11th April 2006. Amongst other orders he permitted Antony Robinson to serve an Amended Particulars of Claim. The amendments all relate to Limber Cottage. It sets out the contributions made to John Woodrup in some detail and alleges that those contributions gave rise to an equitable interest of 60%. It thus alleged that Vera Cartledge held Limber Cottage as to 60% for Linda Cartledge; it further asserts that Vera Cartledge was party to the agreement on 12th June 2003 that Linda Cartledge's share in Limber Cottage would be 60%.

85. Shortly after the hearing on 11th April 2006 there were settlement negotiations between Antony Robinson, Alan Cartledge and Vera Cartledge. The correspondence file suggests that there may have been a discussion on 18th May 2006. In any event the negotiations were successful and the settlement was concluded 7th August 2006. The terms of the settlement were incorporated in a Schedule to a Tomlin Order approved by Master Bragge on that date.

86. Under the terms of the settlement Antony Robinson was to receive £105,000 from the proceeds of sale of Limber Cottage and the proceeds of Linda Cartledge's life and pension policies with Scottish Amicable. In addition Antony Robinson was to receive any interest actually earned on the £105,000 from 23rd June 2006 to the date of actual payment. There was to be no order for costs between Antony Robinson, Alan Cartledge and Vera Cartledge.

87. The settlement was duly effected. It is not clear how much was paid to Antony Robinson in relation to the interest from 23rd June 2006. The sum of £7,328.74 out of the monies held on the joint deposit account was paid to Vera Cartledge on 26th September 2006.

88. The professional negligence action had not settled. On 6th September 2006 Deputy Master Nurse ordered Antony Robinson to set out the full extent of his loss caused by John Spencer's alleged negligence. This was carried out in a Re-Amended Particulars of Claim served on 25th October 2006. In that document Antony Robinson abandoned all challenges to the June will. The reason for this is obvious. If the June will is invalid any negligence by John Spencer plainly did not cause any loss. It maintained that the June will was valid and the September wills were invalid. It amplified the allegations of negligence against John Spencer. The allegations of loss are set out in paragraph 12A and comprise 2 items: 1. The difference between 60% of the net proceeds of sale of Limber Cottage and £105,000 (the amount received in the settlement). This is pleaded as £3,000 but it was in fact conceded that it should have been pleaded at £2,492.09. 2. Interest on £108,000 at 4% from 3rd December 2004 till 23rd June 2006. The basis for this is that Antony Robinson should have received his entitlement when Limber Cottage was sold. This is pleaded at £6,713.28 but some adjustment will have to be made because the completion was on 9th December 2004 and because interest should have been claimed on £107,492.09 rather than £108,000. If my arithmetic is right the claim reduces to £6,596.77.

89. Thus the total loss claimed as a result of the alleged negligence is £9,088.86. If and in so far as the claim succeeds Antony Robinson will be entitled to further interest pursuant to the County Courts Act 1984.

90. The matter came before Mr Justice Briggs on 12th December 2006. For reasons that are not now material he transferred the whole action and any further case management issues to the Leeds County Court.

91. There have been a number of Case Management Conferences in Leeds both before District Judge Jordan and myself. Attempts have been made to point out to the parties the lack of proportionality involved in pursuing a claim for under £10,000 over 5 days, with numerous witnesses (including a handwriting expert), leading Counsel on one side and very experienced specialist professional negligence Counsel on the other. At one time DJ Jordan told the parties that he would not allow 5 days for such a small claim. I can see the force of DJ Jordan's views. In the end I was persuaded (perhaps wrongly) by Mr Matthias QC to allow the full 5 days and not to curtail the evidence or argument in any way.

92. The disproportionate nature of this litigation can be seen from the estimate of Antony Robinson's costs filed by Robert Foster with the listing questionnaire dated 20th April 2007. At that stage (when the trial was limited to 3 days) Robert Foster's estimate of costs amounted to £124,943. Included within that sum was an estimate of £15,000 for the three day trial.

93. In the result the matter came before me on 23rd July 2007 and lasted for 4 days. It might have been possible to have saved half a day if the technical difficulties over the video evidence had not occurred. It was argued and fought as if the amount in dispute had been twenty or even fifty times greater than the sum actually in issue between the parties. At the outset of the trial I allowed a further amendment to Antony Robinson's allegations of negligence. In addition to alleging that John Spencer should have advised Linda Cartledge that she could and should have left her interest in Limber Cottage to Antony Robinson in the will I permitted him also to allege that he should have reminded Linda Cartledge that if she failed to do so her interest would pass to Alan Cartledge. At the end of the trial I reserved judgment.

5. The handwriting expert

94. On 29th September 2006 Robert Foster instructed Michael Handy an experienced and well qualified document examiner to an express an opinion on whether the September wills were forgeries. Mr Handy examined the September wills and produced a report dated 19th October 2006. It will be necessary to analyse his findings in a little detail below. In paragraph 43 and 44 he expressed his conclusions: 1. there was limited evidence to support the view that the English will was not signed by Linda Cartledge 2. there was strong evidence that the Scottish will had been traced and that therefore was not signed by Linda Cartledge 95. On 5th December 2006 Robert Foster sent two or three further documents to Mr Handy. In the result he produced a further report dated 8th December 2006. He confirmed his view in relation to the Scottish will but considered that there was now moderate evidence to support the view that the English will was not signed by Linda Cartledge.

5.1. Reference Documents and comparison

96. Mr Handy was supplied with 3 documents for his first report; first there was the 1992 will. As that will was signed in the name L S Robinson Mr Handy agreed it was of very limited assistance to him. Secondly Mr Handy was provided with the June will. That contained a genuine signature and thus was of real use. It was, however a signature made before Linda Cartledge's brain surgery on 16th June 2003. The third document was a double sided letter written to Antony Robinson on 29th July 2002. On one page of the letter there is the word "Linda". On the other there are the words "Linda Susan Cartledge" and "Alan Cartledge". Mr Handy felt that these were of some value because they indicated that the Linda Cartledge's signature did not vary greatly from her cursive writings.

97. The additional documents sent by Robert Foster were all photocopies. One was a card sent to Antony Robinson's partner. That document did not contain a signature and was of very limited value. The other was a photocopy of the instructions for her will sent on 21st April 2003 to Stewart & Bennett. That document contains 2 signatures in the form "L S Cartledge" as written in the September wills.

98. In the course of his cross-examination Mr Handy was taken carefully and in detail through the signatures on both the questioned and comparison documents. It was plain that there were both similarities and differences. Thus there were differences between the admittedly genuine signatures and some similarities between the disputed and the genuine signatures. I shall not lengthen this judgment by setting out the evidence in detail. If the case goes further it will no doubt be possible to obtain a transcript of the cross-examination. Mr Handy acknowledged in cross-examination that it was usual to have at least 6 genuine signatures so as to assess variations from the genuine signatures. In this case he had far less.

99. Mr Handy agreed that he was not qualified to say what effect the brain surgery might have had on the signature; he agreed that he was unaware of her illness or of the drugs that she was taking. These are set out in Dr Hosker's report. He agreed that the taking of drugs, one's emotional state and stress can all influence one's handwriting.

Evidence of tracing 100. Mr Handy carried out an ESDA test on both wills. There was no evidence of indentations. However examination of the Scottish will signatures noted the presence of fragmented black deposits (probably pencil) within the blue ink lines. He also observed a "white" area around the signature consistent with the use of a rubber.

101. It is these observations that led Mr Handy to feel there was strong evidence of a tracing technique. When he gave evidence he also attached considerable weight (noted in paragraph 21 of his original report) to a high degree of correlation which he observed in the sizing and the spacing of the components in the questioned signatures. This he demonstrated by making an acetate transparency of an enlarged version of the signatures and transposing one over the other.

102. When he gave evidence Mr Handy would not be moved from his opinion despite all the points put by Mr McPherson.