Chapter 10. A Costly Exercise
Once it was established that Smyth intended to pursue his claim of having the only valid will, the scene was set for what was to become a bitter battle for supremacy between the two parties. Not only that, but the wheels were set in motion for a ‘cash bonanza’ that would be distributed between an array of solicitors and barristers appointed to appear before the Judge to argue for their respective clients.
This was a ‘no win’ situation for the beneficiaries regardless of who won the case, as the likely scenario regarding the determination of costs, was that the Judge in his summation would order that the costs for both parties would be assessed on an indemnity basis, and paid out of Tom’s estate.
It has been said that ‘Lawyers don’t just feed a need, they breed a need’ and never was this more evident than in the Smyth v Whiteside case. It soon became apparent that yet another belief about lawyers was about to be fulfilled, that is, ‘the longer a case goes on, the less it is worth except to the lawyer’. There was to be no getting together of the legal fraternity to discuss a possible compromise to avoid the lawsuit, as the rewards to them would be minimal.
This meant the assembling of an elite group who would argue the case for their respective clients, and this necessitated a great deal of paperwork at considerable cost to the parties. Legal secretaries would be constantly in demand with depositions, motions, interrogatories, subpoenas, affidavits, and all the other documents that make up the minutiae of a civil litigation case. Discovery of the other party’s evidence and exhibits take time to assemble, and each document, each piece of paper, and each letter between the plaintiffs and the defendant’s lawyers meant ‘billable hours’.
For Smyth, an experienced lawyer, procedural matters came easy, but for Whiteside, a pensioner, the story was different. Here was a person unacquainted with the law and court procedures, suddenly thrust into the forefront of a civil hearing, simply because Smyth had made up his mind without any proof what-so-ever that, on 1 December 1999 a former client of his was of unsound mind at the time he made his last will.
The situation called for an immediate response from Whiteside, and that was to hire a lawyer to act on his behalf.
His first point of contact was to approach Ms. Debra Canning, the person who drew up Tom’s last will, but it soon became apparent that as she would probably be called as a witness, it would not be in Whiteside’s best interest for her to act. Another lawyer was approached, and in an interview that followed, the history of the case so far was discussed at length, and a précis of events leading up to the trial was placed before him in writing.
No further contact took place in order to give him time to assess the possibility of a successful outcome if he were to take the case. A few days later he called Whiteside almost demanding to know if he was to be appointed to act. No mention was made of the likelihood of a successful outcome, nor was any mention made of the fees that would be involved. The abrupt nature of the conversation resulted in Whiteside questioning himself as to whether the person concerned had his best interests at heart.
Ultimately he decided against appointing the person, and quite naturally requested the return of the papers that had been left with him. Whiteside was told that he could collect them upon payment of $1,000. This was the first of many problems that Whiteside was to experience with lawyers. He decided he would be more cautious in his dealings with them in future.
After consultation with others, Whiteside settled on appointing Warwick Chesters, a partner in the firm of McDonald Chesters, to be his lawyer. Solicitors generally practice in private law firms, and undertake a range of legal work on behalf of their clients. Some solicitors will undertake court appearance work, but many prefer to employ a barrister to undertake the court work.
After an initial discussion between Whiteside and Chesters, it was agreed that the nature of the case demanded that a high profile barrister be appointed to handle it. That person would be Mr. Matthew Conrick LLM. Whiteside was concerned as to the ultimate cost of legal proceedings, as by now he was well aware of the determination of Smyth to win. The grab for cash was about to begin.
In all, it took two years from Chester’s appointment until the date of the trial, and during that time a lot of preliminary work was undertaken to ensure the case for Whiteside would be carefully prepared and argued before the Bench. Whiteside’s first payment to Chester’s Trust Account was effectively an advance payment for professional fees likely to be incurred, and in January 2002, he received his first itemized account. It was worded in the following terms -
Re. ESTATE THOMAS JOWETT
‘To our costs for acting on your behalf including all necessary attendances upon yourself to obtain instructions, perusal of all relevant material, preparation of statement by yourself, preparation of brief to be sent to barrister, receiving opinion, necessary attendance and correspondence throughout, plus disbursements including an initial barrister’s opinion, costs by another solicitor to search Supreme Court files, obtain a copy of will, filing a caveat, and paying a Supreme Court filing fee – Total inc. GST $3,000.’
Already Whiteside had two solicitors and a barrister billing costs and out of pocket expenses and Conrick had not yet been officially appointed. The preliminary opinion of the initial barrister was that the case would be difficult, would be expensive, and without any guarantee that costs would be absorbed by the estate.
This statement was to be watered down by Conrick, (the second barrister) whose opinion was somewhat more optimistic than that of his earlier learned friend. Having confirmed that Conrick would be the person to best represent him, the subject of fees needed to be agreed.
Owing to the fact Whiteside was a pensioner with limited resources to fund the hearing, a deal was struck whereby both Chesters and Conrick would act on a speculative basis. This meant that neither would be paid costs if unsuccessful in the trial and the Judge did not order costs against the estate. If on the other hand Whiteside was successful, or the court ordered that costs be paid from the estate, their fees would be payable in full.
In respect to Conrick’s initial Memorandum of Advice, Whiteside had this to say –
‘I got to thinking about a number of things, particularly about our system of justice. I have come to the conclusion that Mr. Jowett’s estate is not worth the trauma of ongoing litigation (never-the-less the trial did go ahead).The whole process he said, has become a chess game between lawyers, whose legal-speak bears little resemblance to the matters at hand.’
What Whiteside was implying, was that the two solicitors involved just prior to, and after the final will of 1 December 1999, were both aware of Tom’s memory lapses, yet were convinced he fully understood the extent and nature of his intentions in leaving his estate to Whiteside. Their evidence was later to be ignored by the presiding Judge.
Note : Whilst not accepting their testimony, (see later) His Honor, Justice de Jersey, later ruled that the defendant Smyth had ‘sufficiently established that as at 15 December 1998 , the testator (Tom) did have testamentary capacity’.
This he did, knowing that the Death Certificate clearly stated that the deceased had multi – infarct dementia and other illnesses dating back to 1996.
Dr. Clark (Tom’s personal physician)) was asked during the trial if he agreed that the cause of death was as stated in the Death Certificate. Clark responded in the affirmative, thereby admitting that Tom had multi - infarct dementia several years prior to the will of
15 December 1998, yet the Judge in his Orders still favored the earlier will; without it seems medical evidence to support Smyth’s claim.
This is an important point for later consideration.
In any Client’s Agreement, the expected outlays in terms of personnel and costs are listed. They comprise amongst other things, the work to be undertaken by one of the partners to the firm, articled clerks, paralegals, secretarial, and other staff members. Provision is also made to bill the costs of employing a barrister and expert consultants, plus out of pocket expenses such as court and process server’s fees, telephone, postage and travel costs etc.
A review of the voluminous amount of evidence running into thousands of pages of papers, letters, demands, documentation, plus opinions sought and obtained from others in the profession, only went to prove that any challenge or defense on matters that end up in court, is a very time consuming and expensive road to take.
Based on known facts, it was estimated lawyers in the case were expected to claim in excess of $150,000, an amount the residuary beneficiaries would therefore have to fore-go.