Viva! Campaigns Ltd & Anor v Scott

Costs ordinarily follow the event, but probate litigation may justify a different or hybrid order where the testator caused the dispute or investigation of the will was reasonable. The court must assess the parties’ conduct and the changing evidential position over relevant periods. A successful party may recover costs on the indemnity basis following a valid CPR Part 36 offer. A payment on account should generally be ordered after trial where there is a receiving party and a realistic estimate of the probable recoverable costs. The estimate must be cautious and should avoid stifling an appeal or creating a substantial risk of repayment.

The claimants, residuary legatees under John McKeen’s will, established at trial that the will was valid and that Mr McKeen had testamentary capacity. The defendant, his sister and intestacy heir, had challenged testamentary capacity and knowledge and approval. The judgment concerned liability for costs and the claimants’ application for a payment on account.

The court considered whether the ordinary rule that costs follow the event should be displaced for parts of the litigation, having regard to the reasonableness of investigating testamentary capacity, the parties’ conduct, expert evidence, settlement offers, mediation and after-the-event insurance.

1. Costs liability. The ordinary rule under the CPR was that the successful claimants should recover their costs. Probate litigation may justify costs being paid from the estate, or each party bearing its own costs, where the testator caused the litigation or investigation of the will was reasonable. A hybrid order was appropriate where the circumstances changed during the proceedings.
2. The defendant’s investigation of testamentary capacity was reasonable up to 11 February 2013 because disclosure, factual evidence and the experts’ joint report had not previously enabled her fully to evaluate the claim. Nevertheless, her conduct and the manner in which expert evidence was prepared justified her bearing her own costs relating to Dr Cutting’s evidence. The claimants were also to bear specified costs relating to Sally Conlin-Jones and Professor Jacoby’s evidence.
3. The defendant’s rejection of the claimants’ offers, the ATE policy and the claimants’ response to a proposed mediation did not justify departing from the ordinary rule after 11 February 2013. The defendant had failed to achieve the result proposed in her own offer.
4. The claimants’ CPR Part 36 offer took effect from 28 August 2013. Subject to specified exceptions and existing orders, the defendant was to pay costs on the standard basis to 27 August 2013 and on the indemnity basis thereafter, with interest at 10.5 per cent.
5. Payment on account. Under CPR Part 44.3(8), a payment on account was appropriate. The court made a cautious and realistic estimate of the probable recoverable costs, taking account of the parties’ means and other relevant circumstances. The defendant was ordered to pay £186,500 on account by 10 January 2014.

First-instance costs judgment following the court’s oral judgment on the validity of the will and testamentary capacity on 7 November 2013. No appeal is stated in the judgment.