Jones v Longley & Ors

In trust and estate litigation, a personal representative is generally entitled to an indemnity from the estate for costs properly incurred. That entitlement does not prevent the court from ordering the representative to pay another party’s costs. Proper incurrence depends on the circumstances, including whether the representative acted in the interests of the estate and whether the litigation was conducted reasonably. Where co-personal representatives cannot work together and the administration is deadlocked, proceedings to secure the removal of at least one representative may be in the estate’s best interests, even if the precise order sought is not made. Unreasonable, prolix and disproportionate conduct may justify an adverse costs order.

The claimant and the first defendant were co-executors of an estate. The claimant sought the first defendant’s removal, while the first defendant opposed the claim and brought a counterclaim. The proceedings became concerned with disputes about the administration of the estate and the conduct of both executors.

Following further applications, the court removed the claimant as executor, leaving the first defendant in office. The court then considered the costs of the claim, including each personal representative’s entitlement to an indemnity from the estate and whether either party should pay the other’s costs.

1. The court held that Jones v Longley & Ors concerned only the costs of the removal claim. The unresolved allegations in the counterclaim were not determined.
2. Under Civil Procedure Rules 1998, rule 46.3 and paragraph 1 of the Practice Direction to Part 46, a personal representative is generally entitled to recover properly incurred costs from the estate on the indemnity basis. Costs are properly incurred by reference to all the circumstances, including whether the representative acted in the interests of the estate or for another interest, and whether the representative acted unreasonably.
3. The claimant acted in the estate’s best interests in commencing the proceedings. The relationship between the executors had broken down and the administration was deadlocked. At least one executor therefore had to leave office. The claimant’s failure to obtain the precise relief sought did not make the commencement of the claim unreasonable.
4. The first defendant’s insistence on matters which had either been decided against him or were not reasonably required, together with prolix, repetitive and largely marginal material, amounted to unreasonable conduct of the litigation. A litigant in person is subject to the same applicable rules as a represented litigant.
5. The claimant was entitled to recover his costs from the first defendant on the standard basis if not agreed. Any costs not recovered from the first defendant were recoverable from the estate on the indemnity basis. No order for or against the second and third defendants was made.

First-instance costs judgment following the court’s order of 30 July 2015 removing the claimant as co-executor under section 50 of the Administration of Justice Act 1985.