Gaskin v Chorus Law Ltd & Anor

Costs are assessed by reference to the real issues, the parties’ conduct and the circumstances in which litigation became necessary. A personal representative must administer an estate with due diligence. There is no fixed period within which assets must be realised, but substantial delay after the executor’s year places the burden on the representative to justify it. Pre-action correspondence is sufficient where it makes the complaint, required steps and consequences of inaction clear. Where a later-discovered will radically changes the litigation, costs may be divided into phases to reflect responsibility for the earlier proceedings and the reasonableness of continuing investigations.

The claimant brought proceedings concerning the administration of his mother’s estate. He sought the removal of Chorus Law Ltd as administrator, the removal or replacement of Marquita Murphy, and a declaration that Ms Murphy owed occupation rent for living in the estate property.

After proceedings began, a 1974 will was discovered. The claim was later dismissed and the grant to Chorus Law was revoked. The court determined the incidence of costs, including whether the claimant had been justified in bringing the claim, how discovery of the will affected the parties’ positions, and how responsibility should be allocated between the defendants and the estate.

1. Costs discretion. The court applied CPR 44.2 to the unusual circumstances and divided costs into periods reflecting the changing issues and the parties’ responsibility.
2. Estate administration. Under section 25 of the Administration of Justice Act 1925, a personal representative must collect and administer the estate with due diligence. There is no fixed period requiring realisation within a particular time. Where delay exceeds the executor’s year, the representative must show a valid reason for it, by reference to section 44. Chorus Law had not administered this straightforward estate with due diligence. The claimant was therefore justified in seeking performance or removal.
3. Pre-action conduct. The claimant’s letters sufficiently identified the complaints, the required steps and the consequences of inaction. They substantially complied with the Practice Direction—Pre-Action Protocol, despite expressing alternative demands and not expressly citing section 50 of the Administration of Justice Act 1985 or proposing ADR.
4. Effect of the will. Discovery of the 1974 will radically altered the claim. It did not retrospectively affect the claimant’s costs entitlement for the earlier removal phase. He was entitled to six months to investigate the will. Thereafter he was not justified in pursuing the substantive claim, but was justified in continuing in relation to unresolved costs issues.
5. Orders. Chorus Law and Ms Murphy were each ordered to pay 50% of the claimant’s costs for the initial phase. Later costs were allocated between Chorus Law, the estate and Ms Murphy as set out at paragraphs 85–88. Ms Murphy was entitled to the costs of her successful application dated 5 October 2016.

First-instance costs determination following dismissal of the underlying claim. No appellate history is stated in the judgment.