Breslin, Re the Estate of Beck v Bromley & Ors (Costs)

In probate proceedings, the ordinary rule that costs follow the event remains applicable unless the circumstances justify a different order. Costs may be paid from the estate where the testator or principal beneficiary was really the cause of the litigation, or parties may be left to bear their own costs where the circumstances reasonably warranted investigation. A testator is not the cause merely because his affairs were confusing or created false hopes. Under Civil Procedure Rules 1998, r 57.7(5), a defendant who disputes no positive case and merely requires proof in solemn form should not be ordered to pay costs unless there was no reasonable ground for opposing the will. Indemnity costs require circumstances taking the case outside the norm. A costs order subject to detailed assessment ordinarily carries a payment on account.

The claimant, an executor and beneficiary of the deceased’s estate, succeeded in probate proceedings concerning the validity of the deceased’s will. The costs hearing addressed responsibility for the litigation, the position of a defendant who had required the will to be proved in solemn form without advancing a positive case, the proportion of costs payable by another defendant who had withdrawn an undue-influence allegation, the appropriate basis of assessment, and payment on account.

1. Responsibility for the litigation. The claimant was not really the cause of the litigation merely because he had not arranged for execution of the will before the drafting solicitor. The statement given by Mr Speke to Mr Coombes was a more plausible occasion of the proceedings, and it could not be attributed to the claimant. Nor was the testator the cause. Applying Re Cutcliffe’s Estate [1959] P 6, leaving affairs in confusion, misleading others, or inspiring false hopes did not by itself amount to promoting litigation. The claimant was therefore entitled to a costs order in his favour.
2. Investigation of the will. The circumstances justified an investigation, but that did not require the successful claimant to bear his own costs. The third defendant had made a commercial decision which proved mistaken and should pay a contribution.
3. Second defendant. The second defendant had given notice under Civil Procedure Rules 1998, r 57.7(5), had cross-examined the attesting witnesses, and had advanced no positive case. There had been a reasonable ground for opposing the will. No costs order was therefore made against her; she was left to bear her own costs.
4. Apportionment and assessment. The third defendant was ordered to pay three quarters of the claimant’s costs up to 19 October 2015, when the undue-influence allegation was withdrawn, and one half thereafter. The circumstances did not warrant indemnity costs, so the costs were to be assessed on the standard basis if not agreed.
5. Payment on account. Under Civil Procedure Rules 1998, r 44.2(8), there was no good reason to depart from the usual requirement for a reasonable payment on account. The amount ordered was £70,000.