Steven Leslie Pead v Prostate Cancer UK & Ors

Whether a non-party costs order is just and fair is fact-sensitive. The court must consider the non-party’s connection with the proceedings, the extent to which its conduct caused or contributed to the litigation, and whether it is fair to bind it by the trial evidence and findings. A professional adviser may be ordered to pay costs for an ambiguous document and for lost opportunities to clarify instructions, even where the principal claim fails. The order need not reflect sole responsibility. Where costs cannot fairly be apportioned between overlapping issues, the court may adopt a broad-brush percentage assessment.

The claimant had brought proceedings concerning the rectification and construction of his late step-father’s will. The rectification claim failed. The court construed the residuary clause and held that the residue was to be divided pro rata among the beneficiaries named in clauses 4.1 to 4.8.

The will-drafting practice, BBMW, had subsequently merged with GWCA Solicitors Ltd. GWCA was joined as a defendant for costs purposes. The claimant sought a non-party costs order against GWCA. The issue was whether GWCA should bear all or part of the costs of the unsuccessful rectification claim, in addition to accepting responsibility for the construction issue.

1. Jurisdiction and procedure. Under Senior Courts Act 1981, section 51, the court had jurisdiction to order a non-party to pay costs. The procedure in Civil Procedure Rules 1998, CPR 46.2 required the non-party to be joined for costs purposes and given a reasonable opportunity to attend the hearing. Although GWCA had been joined by an order made by consent between the existing parties rather than with its consent, it suffered no prejudice because it had participated fully in the correspondence and hearing.
2. The governing question was whether, in all the circumstances, it was just and fair to make the order. The court had to consider carefully whether GWCA should be bound by the evidence given at trial and the findings of fact, while recognising that non-party costs orders are exceptional in the sense that they fall outside the ordinary run of litigation.
3. GWCA’s omissions significantly contributed to the circumstances giving rise to the rectification claim. The will’s residuary clause was not discussed and reviewed with the deceased, and an important opportunity to confirm his testamentary intentions was lost. The rectification claim nevertheless had reasonable grounds and was not solely caused by GWCA. The court distinguished the clearer circumstances in Marley v Rawlings (No 2) [2014] UKSC 51.
4. The construction claim and rectification claim overlapped evidentially. Although the rectification claim was wider, extrinsic evidence was admissible under section 21 of the Administration of Justice Act 1982. A precise division of costs would therefore be artificial.
5. It was just for GWCA or its insurers to pay 60% of all parties’ costs of the total claim, subject to assessment if not agreed. The parties were invited to agree the costs of the application, with written submissions to follow if agreement was not reached.

The underlying claim was determined by the same judge in [2023] EWHC 642 (Ch). This judgment determined the claimant’s subsequent application for a non-party costs order against GWCA Solicitors Ltd.