Jonathan Henry Leonard & Ors v Margaret Rose Leonard & Ors

In contentious probate proceedings, the general costs rule under Civil Procedure Rules 1998, r 44.2 remains applicable. The probate exceptions are guidelines, not straitjackets, and require a fact-specific assessment.

The first exception is narrow. It requires a very strong case that the testator’s own conduct caused the litigation. The second may justify relieving an unsuccessful will proponent from costs during a reasonable investigative phase, but ordinary hostile litigation begins once the party is sufficiently informed to take a clear view of the merits.

Those exceptions cannot override the consequences of a valid Part 36 offer. A high-value offer may nevertheless be genuine where it contains real give and take, has a meaningful prospect of avoiding trial, and is assessed objectively without hindsight.

Following the trial judgment admitting the 2007 Will to probate and rejecting the 2015 Will, the court determined costs. The Claimants had succeeded in the Probate Dispute, while a separate Gifts Dispute had been abandoned and dismissed.

The Defendants argued that the probate exceptions justified costs out of the estate or no order as to costs for substantial periods. They also argued that the Claimants’ Part 36 offer was not a genuine attempt to settle and that costs should be apportioned by percentage between the two disputes.

The issues were whether the probate exceptions applied, whether the Part 36 consequences would be unjust, and what form the costs order should take.

1. The Defendants were ordered to pay the Claimants’ costs of the Probate Dispute on the standard basis from 11 March 2021 to 4 October 2021. The costs consequences under Civil Procedure Rules 1998, r 36.17(4), applied from 5 October 2021. The Third Claimant was ordered to pay the relevant Defendants’ costs of the Gifts Dispute on the standard basis.

2. The first probate exception did not apply. The evidence did not establish that the testator’s conduct caused the litigation, still less the very strong case required for costs to be paid out of the estate. The facts were materially different from the highly unusual circumstances in Kostic. The testator’s dementia involved fluctuating periods of confusion and improved function, and the beneficiaries and proponents had substantial opportunities to assess his condition.

3. The second exception applied only up to and including the mediation. The Defendants were reasonably entitled to investigate the claim while relevant information and expert evidence were being obtained. By the mediation, however, they had sufficient material to assess the general nature and strength of the claim and had chosen to take a stand. The investigative phase did not continue until the exchange of later expert reports.

4. The Part 36 offer was a genuine attempt to settle. The offer to abandon the Gifts Dispute was a real concession with value in the litigation and gave the offer the necessary element of give and take. The offer was made early enough to produce substantial costs savings, and its genuineness had to be assessed objectively at the time it was made, without hindsight from the trial outcome. The Defendants failed to establish injustice under r 36.17(5).

5. An issue-based costs order was practicable and appropriate for the Probate Dispute and Gifts Dispute. The evidence did not permit a fair percentage allocation, and the issues substantially overlapped in the evidence considered at trial.

First-instance costs judgment following the trial judgment in [2024] EWHC 321 (Ch).