Thomas v Jeffery & Ors

Costs orders remain a broad discretionary matter. The court must consider all the circumstances, including late disclosure, its timing and practical effect, and the parties’ conduct. Ford v GKR Construction [2000] 1 WLR 1397 provides guidance on efficient litigation but does not require a particular costs consequence whenever disclosure is late. An appellate court should not substitute its own view for a first-instance costs decision unless there is an error of principle or the order falls outside the permissible range. The Recorder had considered the late disclosure and was entitled to retain the ordinary costs order. The appeal was therefore allowed.

Mr Thomas brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975 against the executors and residuary beneficiary of his father’s estate. The Recorder found that the will failed to make reasonable financial provision for his maintenance and ordered a lump sum of £36,475. He ordered the executors to pay Mr Thomas’s costs, but refused recovery of additional liability.

The defendants challenged only the costs order. Judge McCahill allowed that appeal and ordered Mr Thomas to pay the defendants’ costs of both the claim and the appeal. The issue before the Court of Appeal was whether the Recorder had erred in principle by failing to apply the guidance in Ford concerning late disclosure, and whether the High Court judge was entitled to exercise the costs discretion afresh.

1. Disposition. The appeal was allowed. Paragraphs 1, 2 and 3 of Judge McCahill’s order were set aside, and the Recorder’s order as to the costs of the claim was restored. The costs of the appeals were left for written submissions if agreement could not be reached.
2. Relevant statutory context. The substantive claim involved the two-stage inquiry under the Inheritance (Provision for Family and Dependants) Act 1975: whether the will made reasonable financial provision for maintenance, and, if not, what order should be made. The substantive outcome was not challenged on this appeal.
3. Costs discretion. Ford v GKR Construction [2000] 1 WLR 1397 gave valuable guidance that a costs judge must consider all relevant aspects of the litigation, including late disclosure, its timing, nature and effect on the outcome, and the parties’ conduct. It did not impose a fixed costs consequence for such a shortcoming. Under the Civil Procedure Rules 1998, the general rule that costs follow the event remains subject to the court’s broad discretion to consider all the circumstances, including conduct.
4. Application. The Recorder had considered the late disclosure of Mr Thomas’s indebtedness. He was entitled to conclude that he could not be satisfied that earlier disclosure would have changed the defendants’ position or the outcome. The defendants had made no settlement offer, had not sought the disclosure, had not requested time to consider it, and had continued to maintain that the claim should fail at the first statutory stage. The Recorder had made no error of principle and his order was within the permissible range.
5. Appellate restraint. The fact that another judge might have made a different costs order was insufficient justification for intervention. Judge McCahill therefore erred in substituting his own discretion.

• Court of Appeal (Civil Division) — [2012] EWCA Civ 693: allowed Mr Thomas’s second appeal, set aside the High Court costs order and restored the Recorder’s costs order.
• High Court of Justice, Chancery Division, Bristol District Registry — Judge McCahill allowed the defendants’ appeal against the Recorder’s costs order and ordered Mr Thomas to pay the defendants’ costs.
• Trial before Mr Recorder Wood — the claim succeeded in part. A lump sum of £36,475 was ordered, and the executors were ordered to pay Mr Thomas’s costs of the claim on the standard basis.