Paul Ivey & Ors v Susan Marie Lythgoe & Anor

A non-party should not ordinarily be joined for costs-only purposes merely to facilitate a possible future order under section 51 of the Senior Courts Act 1981. The summary jurisdiction is appropriate only where the non-party’s connection with the litigation makes it just to proceed on the findings already made, rather than determine disputed liability, causation and loss as in an independent claim.

Where related proceedings arise from the same facts, consolidation may be preferable if it permits all substantive issues to be resolved together. Once consolidated, the court may order a party to engage in alternative dispute resolution under CPR rule 3.1(2)(o), provided sufficient time is allowed to consider properly particularised allegations and loss.

The claimants brought probate and rectification proceedings concerning two wills made for David Ivey. They also issued separate negligence proceedings against Trust Inheritance Limited, a will-writing business alleged to have failed to implement the deceased’s instructions. The negligence claim had not yet been served.

The claimants sought either to join Trust Inheritance Limited to the probate and rectification proceedings for costs purposes only, or to consolidate the proceedings and require the respondent to participate in a mediation already arranged. The central issues were whether costs-only joinder was appropriate before liability had been determined, and whether consolidation and compulsory mediation should be ordered.

1. Costs-only joinder. The court refused to join Trust Inheritance Limited as a costs-only party. Under section 51 of the Senior Courts Act 1981, as interpreted in Aiden Shipping Co v Interbulk Ltd [1986] AC 965 and Deutsche Bank AG v Sebastian Holdings Inc [2016] EWCA Civ 23, the critical question is whether the non-party’s connection with the proceedings makes summary determination appropriate and just. A section 51 application proceeds on facts already found in the main proceedings; it is not a substitute for trying contested negligence, causation and quantum.
2. The respondent disputed liability and had not accepted a non-party costs order. If the claimants failed in the probate and rectification proceedings, a section 51 summary process would not be appropriate while negligence liability remained disputed. Joinder before determination of the underlying claim was therefore premature.
3. Consolidation. The negligence and probate proceedings arose from the same facts, and consolidation would allow the respondent to engage substantively with the dispute. The consolidated proceedings were to be managed and tried in the High Court.
4. Mediation. Following consolidation, Trust Inheritance Limited would be a party and could be ordered to engage in alternative dispute resolution under CPR rule 3.1(2)(o), reflecting the jurisdiction recognised in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416. The court required particulars of claim to be served first, because the respondent was entitled to know the alleged breach, causation case and claimed loss sufficiently in advance of mediation.
5. The court ordered service of particulars by 4 pm on 17 September 2025, stayed the consolidated proceedings pending mediation on 17 October 2025, and ordered the respondent to attend and participate in that mediation. The stay would be lifted if mediation failed.

First-instance decision. The judgment does not state any prior appellate decision in this dispute.