Perrins v Holland & Ors

In contested probate proceedings, the unsuccessful party ordinarily pays the successful party’s costs. A departure requires a positive case based on the circumstances, conduct of the parties, or a recognised probate exception. The fact that a will reasonably required investigation may justify leaving costs where they fall, but it does not ordinarily entitle an unsuccessful challenger to recover costs from the executors personally. The court must also consider reasonable settlement offers, even where they do not qualify under Part 36. A solicitor’s failure to follow the professional “golden rule” concerning medical assessment, or deficiencies in a Larke v Negus statement, will not affect costs unless causative of the litigation. The roles of executors and solicitors must remain distinct.

The ruling followed an earlier judgment upholding Robert Perrins’s will and applied to the consequential questions of costs and permission to appeal. The claimant, David Perrins, had unsuccessfully challenged the will, relying on alleged uncertainty about the testator’s capacity, the solicitor’s conduct, deficiencies in the supporting statement, and evidence given by one defendant.

The court considered whether the circumstances justified displacing the ordinary rule that costs follow the event, whether the probate exceptions applied, what effect should be given to an earlier settlement offer, the executors’ entitlement to costs from the estate, and whether permission should be granted to challenge the application of the principle in Parker v Felgate.

1. The general rule under Civil Procedure Rules 1998, rule 44.3, was that David, as the unsuccessful party, should pay the successful parties’ costs. A different order required consideration of all the circumstances, including conduct and partial success.

2. The recognised probate exceptions described in Spiers v English and considered in Kostic v Chaplin did not justify ordering the executors personally to pay David’s costs. The first exception may apply where the will-maker or residuary beneficiaries caused the litigation, but recent authority had narrowed its scope. The executors were sued as executors, not as solicitors, and it would be wrong to confuse those roles.

3. The solicitor’s failure to follow the professional “golden rule” was not causative. That rule was one of good practice, not law; compliance would not necessarily have avoided the challenge, and the principle in Parker v Felgate would still have been relevant. The alleged deficiencies in the Larke v Negus statement and the solicitor’s partly inaccurate evidence likewise did not cause the litigation. The litigation was caused by the claimant’s refusal to accept the nature of the relationship between the testator and the third defendant.

4. The second probate exception did apply. The testator’s disability and the information available to the claimant raised a reasonable suspicion warranting proof of the will in solemn form. Ordinarily, this would have led to costs lying where they fell. That conclusion was qualified by the claimant’s unreasonable refusal of a reasonable settlement offer. Although the offer was not compliant with Part 36, the claimant should pay the third defendant’s costs on the standard basis from the date of her joinder.

5. The executors had acted reasonably in relation to the adjourned trial date. Their costs thrown away were recoverable from the claimant’s solicitors under the earlier order, and, insofar as unrecovered, from the estate.

6. Permission to appeal was not determined on the merits. The challenge to Parker v Felgate was a matter for the Court of Appeal, notwithstanding that the principle was not technically binding on that court. The remaining grounds alleged errors in applying established principles to factual findings.