The battle for Bleak House

Couwenbergh v VALKOVA [2008] EWHC2451 is a unique case because there has never been a successful second civil appeal, let alone one leading to a retrial which has overturned the verdict in the first trial. Until Taylor v Lawrence [2002] EWCA 59, the Court of Appeal's jurisdiction to hear a second civil appeal (after it had already dismissed the first appeal) was unclear.

Several cases have tried and failed to reopen a final appeal, and there seems to be disagreement in the Court of Appeal about how to exercise this jurisdiction. It seems possible that there are judges in the Court of Appeal before whom the second appeal in Couwenbergh might not have succeeded.

Setting a precedent

The Couwenbergh case concerned the estate of Alice Adam, who died in 1991 and was as old as the century. Mrs Adam left her estate including a large house in Kilburn to her lodger Dr Bilyana Valkova who was a physician from Bulgaria, but she was not licensed to practice in the UK. A year before Mrs Adam's death she changed her will. In the old will, made in 1978, everything was left to her family. In the new will made in 1990 everything was left to Dr Valkova with a gift over to Dr Coffey, Dr Valkova's sister.

Mrs Adam was originally of Polish origin. Her brother had been in Germany during the Second World War, but his sister had been employed by the Allies and stayed in England after the war, buying her house in Kilburn with help from her German brother. His daughter Barbara was a frequent visitor, to see her aunt and practise her English in London. Barbara was a beneficiary under the original 1978 will, but like her relatives, got nothing under the new will.

The new will was disputed by Barbara and the rest of the family. Mrs Adam, it was said, had not had testamentary capacity when she made the will in 1990. Dr Valkova (who had not worked since the mid-1980s) was granted legal aid in the contested probate action issued by the family. Couwenbergh v Valkova commenced in 1993. Five years later there was a four-day trial before Carnwath J in the Chancery Division. The trial judge heard from Mrs Adam's GP (called by the claimant) who recalled her poor memory. But Dr Valkova (with the benefit of legal aid) was allowed to call two expert witnesses (pre-CPR) both of whom advised that the old lady had probably been of sufficiently sound mind to know and understand what she had done. One of them, a geriatrician practising at Charing Cross hospital, had examined the old lady.

The examination had been stage-managed by Dr Valkova, and the expert was given limited information and did not speak to Mrs Adam's GP before to making his report.

Carnwath J gave judgment in favour of Dr Valkova on 31 July 1998. It was a hard blow for Barbara and the family. Dr Valkova had prevented any family member seeing or speaking to Mrs Adam for the last year before her death. The family had not been represented at the funeral. They had not even known where she was buried.

Unanswered questions

There were family concerns about the standard of preparation of the case for the trial: why had a police officer not been called as a witness '“ a constable who was called to the house at the time of the family's last visit to Mrs Adam (to evict the family)? Why had an expert witness not been called, a consultant geriatrician or psycho-geriatrician and not just a GP? Why was the medical visitor that had been sent by the Court of Protection to assess Mrs Adams' capacity, but who had been physically obstructed from examining Mrs Adams by Dr Valkova, not called? Why weren't the hospital notes all available? One hospital note (not available for the first trial) appeared to be a record of a doctor's discussion with Mrs Adam's lodger, who described her (in 1987, four years before her death) as suffering from dementia!

Attempts were made to garner some of this evidence and an application was made for permission to appeal. It failed in 1999. One Court of Appeal judge (now sitting in the House of Lords) described the appeal as 'hopeless'. It was the end of the line for Barbara and the family.

The claimant, Barbara's ex-husband, was pursued in Holland for the Legal Aid Board's trial costs. His house was the subject of a freezing order. Barbara believed that the circumstances of her aunt's death required an explanation.

Mrs Adam had not died at home (her consistent desire) or in hospital. Mrs Adam died at Dr Coffey's house in East London miles from Kilburn. The death certificate recorded broncho-pneumonia, which is not a sudden killer. But the ambulance called to help arrived after Mrs Adam had died. Hospital notes record that the hospital was told that Mrs Adam's death was witnessed by relatives, which it had not been.

The emergence of fresh evidence

In 1999 the police began an investigation during which Dr Valkova was arrested. No criminal charges were made (of Dr Valkova or anyone else) and the investigation was concluded. But during the police interviews of witnesses some new evidence emerged. The 1990 will leaving everything to Dr Valkova appeared to have been witnessed by two Italians. When they were interviewed by the police the Italians denied that they had seen the testatrix sign the will. They denied written confirmation purporting to confirm the attestation.

Due execution of the will had been a technical issue at the trial, but no investigation had been made and the issue had all but been conceded by the claimant. Armed with the Italians' evidence, an application was made for permission to appeal. It was granted by the Court of Appeal in 2004, the Court of Appeal seeking to encourage a mediation between all parties. By now the Legal Services Commissions' costs were said to exceed £250,000, and it was playing an independent role in the litigation, as well as continuing to fund Dr Valkova.

In the final hearing in early 2005 to decide the second civil appeal, the court was heavily influenced by the weight of the Italians' evidence to the police, and concerned about the issue of due execution. But the point was made to the Appeal Court that the original judgment had relied on expert evidence which was itself expressly dependent on 'facts' related by Dr Valkova. If the Italians' evidence was believable, it cast serious doubt on Dr Valkova's evidence, and through her on the opinion about testamentary capacity expressed by at least one of her experts.

The Court of Appeal was persuaded to set aside Carnwath J's original verdict, and remit the action for retrial on all issues ([2004] EWCA Civ 676). The 'reasonable alternative' to a successful second appeal proposed by the defendant had been a fresh action to allege fraud and perjury (which was denied by Dr Valkova). The Court of Appeal in Couwenbergh v Valkova preferred a more direct route to the truth.

Following the uniquely successful second civil appeal, the claimant attempted to compromise the claim by making a Part 36 offer to drop hands. The claimant had been financially and emotionally exhausted by 12 years of litigation. Despite the evidence of the Italian witnesses, and strong reservations about the original verdict that the testatrix had testamentary capacity, the claimant did not want to continue the struggle. But Dr Valkova, and her backers the Legal Services Commission, decided to fight on.

Dr Valkova petitioned the House of Lords to set aside the decision in the Court of Appeal. The petition was settled by Steven Gee QC. It was not dismissed until 2006.

The claimant obtained third-party disclosure orders and supplemented his evidence. New evidence was obtained: statements from the police; hospital notes of treatment given to Mrs Adam in the 1980s; contemporary notes made back in 1990 by a social worker who was suspicious of Dr Valkova. The claimant retained a psychiatric geriatrician.

At every step Dr Valkova applied to adjourn and delay on the ground of her 'ill health'. The first retrial was adjourned in December 2007, even though there was expert evidence before the court to show that Dr Valkova had made herself ill.

Acknowledgement at last

Finally, in April 2008 the retrial began. The trial judge was Blackburne J. After a three-week trial, and delays for long written submissions, judgment was handed down at the beginning of the Michaelmas Term 2008. The judge decided that there was overwhelming evidence that Alice Adam had not had testamentary capacity when the 1990 will was made (to leave everything to Dr Valkova). His judgment records the evidence of Dr Valkova's expert geriatrician (whose evidence had been influential at the first trial).

At the retrial this geriatrician had been taken through the 'new' evidence '“ the hospital notes, the GP's records, the social workers notes: all the contemporary material which had not been seen at the first trial. Very fairly, he conceded (albeit tentatively) that his original opinion had probably been wrong and that Mrs Adam had probably not had testamentary capacity in 1990.

But the Italians' evidence was too damaged by time to enable the judge to rebut the presumption of due execution of the will. The issue of due execution (which had resolved the second civil appeal in favour of the claimant, and originally led to the retrial) was decided against the claimant.

In a judgment of over 150 pages the machinations of Dr Valkova are meticulously recorded. To avoid detection by social workers, GPs, the Lord Chancellor's Medical Visitor and concerned lawyers, Dr Valkova retained five firms of solicitors in 1990. One firm dealt with her power of attorney granted by Mrs Adam; one firm dealt with the social worker; one firm wrote the new will (without ever speaking to or seeing the testatrix); and two firms were engaged to bully another firm. And Dr Valkova herself consulted a Citizens Advice Bureau for assistance to draft an enduring power of attorney.

To the end of the trial Dr Valkova insisted that Alice Adam retained her full faculties all her life. According to Dr Valkova, Mrs Adam was still writing (and typing) her autobiography in the last year of her life, despite having had Dr Valkova handwrite all her letters for the previous five years.

It took 17 years after Alice Adam's death for her family to overturn the 1990 will. The action had been in existence for 15 years. Couwenbergh may or may not be a bad example of the reopening of an appeal. But the case is most interesting as a story of long-delayed justice.