Chapter 19 The Hearing

The hearing on the eleventh of August 2026 was in chambers and it took one hour and fifty-one minutes and there were six of us in the room: me, Mr Lowe, Mr Fenn, Mr Kestrel for the executor, the applicant’s note-taker, and the judge. I am going to do the thing I have refused to do for six months and describe the last four minutes, and then I am going to say what I said before them, and I am going to do it in the order it happened even though the order makes me look like a fool, and Aveline Roux has told me twice that the order is the only thing in any of this that is of any use to anybody. Here is the whole of it. Mr Lowe opened, and he took nine minutes, and he was extremely good, and his submission was in these terms. That clause 11 of a codicil cannot disapply a provision of a settlement made in 2011 by reference to the codicil, because a codicil operates on the estate and not on the instrument, and because Article 12 protects the Protected Persons against a disposal of shares during the testator's life and has nothing to do with a testamentary disposition at all; and that in any event the codicil is dated after the testator's death and is a nullity, and that the applicant has not sought to argue otherwise. That last part took about eleven seconds and it was the single most important sentence in the case and he said it while looking at the papers. Then he said: "My learned friend has not argued that the codicil is genuine. I have waited six months for her to argue it. She has not done so, and I am going to assume, and I invite the tribunal to assume, that the position is common ground: the codicil is a forgery, and the applicant accepts it, and the application must be disposed of." And then he sat down. I want to describe what happened in the room, and it was not a long silence. It was about four seconds, and in those four seconds Mr Fenn, who is sixty-eight and who came up from Birmingham, put both hands flat on the table in front of him. And I stood up. And I said: "My Lady, I beg your pardon, I have not said that, my learned friend has misdescribed my position, and I am not going to let it stand, and I have got about four minutes and I am going to use them on this and then I am going to apologize for having used them on it." And the judge said: "You may have as long as you require." And I said: "Thank you, my Lady." And then I said this, and I have the transcript, and I am going to print it exactly as it was spoken, including the parts I am ashamed of, and I have decided that if I am going to print any of this at all then this is the passage that has to be set down. "My Lady, I have not said that the codicil is a forgery. I have never said that. I have not been instructed to say that. I am the beneficiary of clause 14 and I have never been asked to file anything and I have spent six months declining to file anything, and my learned friend has just been kind enough to remove from me the burden of arguing a proposition I have never advanced, and I am obliged to him for it and I am obliged to this tribunal for the correction, and I would not have been able to make the correction myself, because I have been sitting in a two-desk office since Monday not being able to decide what to say about a paragraph six. "Here is my position, and it is a bad one, and I am going to state it in three sentences and then I am going to sit down. "The codicil is either genuine or it is not. I have not proved that it is a forgery and I am not going to attempt to, because I do not have the evidence and because I am the beneficiary and because there is a limit to what a person in my position is entitled to do with the materials in her hands, and Mr Lowe has used the correct word, which is 'volunteer', and I have been doing it for six months and I did not know that was the word. "Clause 11 of the codicil disapplies Article 12 of the 2011 Settlement for the purposes of the codicil. That does not disapply Article 12 for the purposes of the settlement, and it does not confer any right of first refusal on anybody, and it does not take the estate's holding outside the definition of a Protected Holding, and if my learned friend's construction is right then clause 14 is unnecessary, and if it is unnecessary then the document was made by somebody who had been told it was necessary, and I have set out in a note of the twenty-ninth of July, of which I have a copy and which I can hand to the tribunal, the reasons why I think it might have been. "And I am not going to say that. Not because it is privileged, though it probably is, but because it is a conclusion about the mind of a dead man that I formed over six months from four sentences spoken in a kitchen by a frightened man, and if I file that I will be doing the thing that everybody in this room has been expecting me to do since the fourth of March, and my learned friend has just demonstrated in nine minutes how easily that can be done by a man who is not the beneficiary and who does not care about the answer." And then I said: "I am sorry, my Lady. That was four minutes of nothing. I have no application." And the judge said: "Mr Prentice, sit down." And I sat down. And then the judge said something to Mr Lowe that I am going to print because I have been thinking about it for four weeks and I am not going to paraphrase it. She said: "Mr Lowe, you have made a submission based on a concession that has not been made. I have been a judge for nineteen years and I have had it happen to me perhaps four times and I have always allowed it, because it saves time and because a concession that is not made is generally a concession that is going to be made. I am not allowing it on this occasion, and I am not allowing it because your learned friend has corrected it and because when a correction is made I expect counsel to say something about it, and you have not said anything about it, and you have been sitting there for four seconds, and I would like to know what you thought you were doing." And Mr Lowe said: "I was taking the concession my learned friend had not yet made." And she said: "Then you were not being fair, and I will not repeat that." And then she said: "I am going to allow a short adjourn of fifteen minutes." And everybody got up and went out into a corridor, and there were six of us and a corridor about eleven feet wide, and Emory Fenn stood on one side and Mr Lowe stood on the other side and I stood in the middle with my bundle under my arm, and nobody said anything for about a minute, and then Mr Lowe said, across the corridor, to me, in a perfectly ordinary voice: "Ms Prentice. That was the correct thing to do and it was the most expensive thing anybody in this case has done, and I have been doing construction applications for twenty-two years and I have never seen a junior counsel stand up and withdraw an application in the middle of a hearing, and I want to tell you that it was not a mistake on your part and I am not going to pretend to you that I did not know what you were going to do, and I am going to tell you the truth about that, which is that I knew what you were going to do because I have been watching you since the fourth of March, and I have been watching you because in six months you have not made one single mistake that a person in your position would not have been expected to make except one, and you made that one in a corridor on the seventeenth of June in the rain, and everybody in this case knows about it except you." And I said, "Mr Lowe, I don't know what you're—" And he said, "Neither do I, and that is the point, and I am sorry, and I did not arrange it, and I want to be careful about what I am saying to you in a corridor in front of six people because I am going to be asked about it later. Say nothing. I am going back in. I think we are going to lose this."