Perrins v Holland & Ors

In contested probate proceedings, reasonable suspicion about a will may justify an investigation and, ordinarily, an order that costs lie where incurred. That principle does not displace the court’s duty to control expense. The public interest in proving a will in solemn form must be balanced against the public interest in sensible settlement and the overriding objective. An admissible offer outside the formal settlement regime remains relevant to costs. The court may order costs from the date a party is joined where the offer was reasonable and should have been accepted. A litigant cannot challenge a costs order made personally against solicitors where the litigant has no interest in it.

David Perrins appealed against costs orders made after his unsuccessful challenge to the validity of Robert Perrins’s will. Lewison J had ordered payment of costs relating to an adjournment by the claimant’s solicitors, directed a costs assessment under section 11 of the Access to Justice Act 1999 in relation to Anne Dooney’s costs, and ordered the executors’ costs to be paid from the estate.

The Court of Appeal had already dismissed the first two grounds concerning the grant of probate. This judgment addressed the remaining costs ground, including whether a reasonable settlement offer could justify costs against David despite circumstances warranting investigation, and whether David could challenge an order made personally against his solicitors.

The Chancellor, with Moore-Bick LJ and Jackson LJ agreeing, dismissed the remaining costs appeal and refused permission to appeal to the Supreme Court.

1. Personal costs order. The challenge to the order concerning the adjournment was misconceived. The order had been made against David’s solicitors personally, not against David. He therefore had no interest in the issue. The solicitors had not sought to be joined or obtained permission to appeal. In any event, Lewison J had properly decided that the executors were reasonably entitled to separate representation from Anne and that Anne’s attendance was necessary.
2. Costs and investigation. The circumstances, including the testator’s disability and information available to David, reasonably justified investigation of the will’s validity. The public interest in proving a suspicious will in solemn form could therefore support leaving costs where they fell. That consideration was not decisive.
3. Settlement and proportionality. The public interest in investigation did not justify the potential exhaustion of the estate in legal costs. The court was also entitled, under the overriding objective’s requirement to save expense in Rule 1.1(2)(b) of the Civil Procedure Rules 1998, to encourage sensible settlements. Under rule 44.(4)(c), an admissible offer remained relevant even though it did not comply with Part 36. The balance struck by Lewison J was correct.
4. The offer of £10,000 was reasonable when made. David’s decision to await medical and social services records did not alter that assessment; by declining the offer pending those records, he accepted the risk that they would not assist his case. The order for Anne’s costs from the date of joinder was therefore justified.
5. The costs order was varied only to include the executors’ and Anne’s appeal costs on the standard basis. If the executors could not recover from David or the Legal Services Commission, they could retain their assessed indemnity costs from any remaining estate assets. Permission to appeal was refused because the grounds had already failed and no assets remained to make a further appeal cost-effective.

1. Court of Appeal (Civil Division): The first two grounds concerning probate had previously been dismissed. The remaining costs appeal was dismissed, and permission to appeal to the Supreme Court was refused.
2. Chancery Division: Lewison J pronounced for the force and validity of the will and made consequential costs orders on 21 December 2009, with reasons given in judgments dated 31 July and 21 October 2009: 2009 EWHC 2588 CH.