Daliah Dorit Sherrington & Ors v Sherrington

In probate litigation, costs are not necessarily apportioned issue by issue. Where an appellant has succeeded in substance, the court may award the whole costs of the appeal under the ordinary rule. At trial, costs may reflect the reasonableness of litigating a genuine execution issue, while hostile conduct and serious allegations may justify refusing payment from the estate. Costs of an administrator and estate administration may be borne by the estate where litigation reasonably made the appointment necessary. The court may also order an interim payment on account of costs.

This was a consequential costs judgment in an appeal from the Chancery Division before Mr Justice Lightman. The claimants, children of the testator, had unsuccessfully challenged the due execution of a will under which the defendant widow took the estate. The Court of Appeal considered permission to appeal and the allocation of the costs of the appeal, trial, temporary administrator application and administration, including whether costs should be paid from the estate and whether an interim payment should be ordered.

The Court of Appeal refused the unsuccessful claimants permission to appeal.

1. Appeal costs. Although the appellant had failed on various points, she had succeeded in substance. The court therefore awarded her the whole costs of the appeal under the ordinary rule. It was not appropriate to assess those costs by reference to individual issues.
2. Trial costs. Evidence from the attesting witnesses had raised sufficient doubt about due execution to make it reasonable for the claimants to litigate that issue. Nevertheless, the litigation had been highly hostile, and serious allegations against the successful appellant had contributed to that hostility. The claimants were therefore ordered to pay 50 per cent of the defendant’s costs of the action. The court rejected payment of those costs from the estate.
3. Administration costs. Because it had been reasonable to place due execution before the court, a temporary administrator would have had to be appointed. The costs of the administrator application and the administration were accordingly to be paid out of the estate and were not to be added to the costs of the proceedings.
4. Interim payment and final matters. Against estimated appeal costs of about £125,000, the court ordered an interim payment of £50,000. Counsel were directed to agree the form of order. The court’s subsequent appeal for mercy before enforcement was an exhortation, not a variation of the costs orders.

• Court of Appeal (Civil Division) — in [2005] EWCA Civ 410, refused permission to appeal and made the consequential costs and interim payment orders.
• High Court of Justice, Chancery Division — decision of Mr Justice Lightman, from which the appeal arose; citation not stated in the judgment.