Michael Lumb v Stuart Lumb

Costs protection for a probate defendant who gives notice under CPR r57.7(5)(a) depends on both giving and complying with that notice. A defendant must put the propounder to proof, rather than adduce evidence advancing a positive challenge to validity. “Reasonable grounds” under CPR r57.7(5)(b) are objective and must at least raise a real prospect that the will will not be proved. Mere arguability is insufficient. The fact that a will is ultimately proved does not automatically eliminate reasonable grounds. However, where summary judgment was always inevitable and cross-examination could not realistically affect the result, the grounds cannot be reasonable.

The claimant obtained summary judgment for pronouncement in solemn form of his mother’s 2019 will. The defendant had given notice under CPR r57.7(5)(a), stating that he advanced no positive case and required the claimant to prove the will, while reserving the right to cross-examine the attesting witnesses. The Deputy District Judge held that the defendant’s seven grounds disclosed no realistic prospect of successfully opposing the will but were nevertheless reasonable grounds under CPR r57.7(5)(b), and made no order as to costs.

The claimant appealed the costs order. The central issues were the meaning of “reasonable ground”, the interaction between CPR r57.7(5) and summary judgment, and whether the defendant’s evidence and conduct complied with the notice.

1. Appeal allowed. The Deputy District Judge’s costs order was set aside. The defendant’s notice under CPR r57.7(5)(a) did not attract costs protection because he advanced positive evidence challenging validity and, in any event, none of the seven grounds was a reasonable ground of opposition.
2. CPR r57.7(5) codifies a probate costs principle and represents the rule makers’ balance between avoiding fruitless litigation and ensuring that doubtful wills are properly investigated. Its application should reflect the reduced inquisitorial role of the modern probate court and the policy against encouraging litigation by displacing the ordinary costs rule.
3. A defendant relying on the notice must comply with it. Ordinarily, the defendant may rely only on the claimant’s evidence and evidence from the attesting witnesses, including matters elicited in cross-examination. Evidence adduced by the defendant to undermine validity goes beyond the notice to that extent. Case management may require the defendant to identify the doubts relied on and documents intended for cross-examination.
4. The burden of proving absence of reasonable grounds lies on the propounder. The defendant must identify the alleged grounds and bears an evidential burden of showing that they were reasonable. The criterion is objective and fact-sensitive. It must relate to material properly before the court, or capable of being obtained with a real prospect from an attesting witness.
5. The grant of judgment proving the will does not automatically show that opposition was unreasonable. However, where there was never a real prospect that the claimant would fail to prove validity, grounds which could not survive the summary judgment test are not reasonable grounds under CPR r57.7(5)(b). Here, the detailed attendance notes, weak or irrelevant medical material and ineffectual cross-examination showed that the grounds were akin to hopeless.
6. The appellate court should respect an evaluative decision involving mixed law and fact, but may intervene where it is in as good a position as the first-instance judge and is satisfied that the conclusion was wrong. Costs were ordered to follow the event on the standard basis. Assessment issues were remitted to the Deputy District Judge.

• High Court, Chancery Division: Deputy District Judge Whitehead granted summary judgment for pronouncement in solemn form of the 2019 will and made no order as to costs on 13 December 2022.
• High Court, Chancery Division, Chancery Appeals List: The costs order was set aside. Costs were ordered to follow the event on the standard basis, with assessment issues remitted to the Deputy District Judge.