John Duncan Grierson v Robert James Grierson

A successful party will ordinarily recover costs under Civil Procedure Rules 1998, r 44.2(2)(a), unless there is a reason to depart from that rule. For a non-money claim, the Part 36 comparison is broad and evaluates whether the judgment is at least as advantageous as the offer in the round, having regard to the relief obtained and the circumstances. The enhanced consequences of Part 36 follow unless their application would be unjust. Indemnity costs may be ordered where conduct falls outside ordinary and reasonable litigation conduct. Deliberate misconduct is unnecessary; unreasonable conduct to a high degree, including a speculative or weak case, may suffice.

The claimant succeeded in the substantive proceedings concerning his mother’s wills and a declaration of trust. The court pronounced in solemn form for the 2020 Will, pronounced against the validity of the 2022 Will and declared the Declaration of Trust void. The defendant consented after trial to the appointment of an independent administrator.

This judgment determined the form of order and costs. The issues included the ordinary costs order, the consequences of the claimant’s Part 36 offer, whether pre-offer costs should be assessed on the indemnity basis, and the appropriate payment on account pending detailed assessment.

1. Form of order. The court made the order reflecting the substantive judgment and the defendant’s consent to the appointment of Freeths as independent administrator. Consequential directions concerning the 2022 Will, remuneration and vesting of estate assets were included. Additional obligations concerning possession of the property and other matters to which the defendant had not consented were excluded because they did not follow from the substantive judgment.
2. Ordinary costs. The claimant was the successful party on the key issues. His failure to establish that clause 1 of the 2020 Will should be omitted from probate did not materially detract from that success. The defendant was therefore ordered to pay the claimant’s costs under Civil Procedure Rules 1998, r 44.2(2)(a). The exceptions discussed in Leonard v Leonard (costs) [2024] EWHC 979 (Ch) did not apply.
3. Part 36. For this non-money claim, the court applied the approach discussed in Lamport v Jones [2023] EWHC 667 (Ch): the judgment and offer were compared in broad terms and in the round. The judgment was at least as advantageous to the claimant as his offer. The additional legacy proposed by the offer would have left him financially worse off, notwithstanding that the independent administrator was obtained by consent rather than by judgment.
4. The enhanced consequences under Civil Procedure Rules 1998, r 36.17(4), were not unjust. The claimant therefore recovered indemnity costs, interest at 10% above base rate and an additional sum equal to 10% of the costs awarded, from expiry of the relevant period.
5. Pre-offer indemnity costs. The defendant’s conduct was outside ordinary and reasonable conduct of proceedings. He maintained a case despite knowing of serious execution problems, made an unwarranted allegation of professional misconduct, failed to obtain independent advice and assessment of testamentary capacity, and conducted the litigation in a way likely to increase costs. Applying the principles in Excelsior Commercial & Industrial Holdings Ltd v Salisbury Homer Aspden & Johnson (Costs) [2002] EWCA Civ 879, Franks v Sinclair (Costs) [2006] EWHC 3656 (Ch), Esure Services Ltd v Quarcoo [2009] EWCA Civ 595 and Burgess v Lejonvarn [2020] EWCA Civ 114, deliberate misconduct was unnecessary. Pre-offer costs were also assessed on the indemnity basis.
6. A payment on account of £160,000 plus VAT was ordered, representing approximately 80% of incurred costs.