Cowderoy v Cranfield

Although costs ordinarily follow the event, the court may adopt a different order in a will challenge. Relevant considerations include whether the circumstances reasonably justified investigation and whether the allegation required the successful party to incur costs to clear his or her name. A claimant who continues challenges after the available evidence makes them unreasonable may be ordered to pay the defendant’s costs from the point when that became clear. Public funding affects enforcement of the costs order, rather than the underlying liability.

The claimant unsuccessfully challenged the validity of a will on grounds of testamentary incapacity, want of knowledge and approval, and undue influence. The court rejected all three challenges in its earlier judgment, [2011] EWHC 1616 (Ch).

The parties then made written submissions on costs. The claimant sought no order for costs until 26 January 2010 and costs thereafter, subject to public-funding restrictions. The defendant sought his costs throughout, accepting that enforcement of costs incurred during public funding should require the court’s leave. The issue was the date from which the defendant should receive his costs.

1. The usual approach under the Civil Procedure Rules is that costs follow the event. That approach would ordinarily require the unsuccessful claimant to pay the successful defendant’s costs.

2. The court may depart from that approach in a will challenge. Following Spiers v English [1907] P 122, relevant circumstances include cases where the testator or beneficiaries caused the challenge, and cases where the facts reasonably led to an investigation. In the latter case, costs may be left with those who incurred them.

3. The claimant accepted that it eventually became unreasonable to continue the incapacity and knowledge-and-approval challenges. The court held that this point arose shortly after the defendant’s solicitors’ letter of 8 January 2010. Allowing three weeks for consideration, the relevant date was 29 January 2010, rather than the exchange of witness statements on 25 August 2010.

4. As to undue influence, the court adopted the approach in Re Good [2002] WTLR 801, namely that the successful defendant should not be left to bear his own costs of clearing his name against that allegation.

5. The claimant was ordered to pay the defendant’s costs on the standard basis from 29 January 2010. There was no order for costs before that date. Costs incurred from 2 February 2010, during public funding, were not to be enforced without the court’s leave. The parties agreed to public-funding assessment where applicable.