British Camelids Limited v Brooke Hospital for Animals & Ors

Construction proceedings concerning the administration or distribution of an estate are not ordinarily hostile litigation merely because beneficiaries advance rival interpretations. They generally fall within category (1) or (2) of the Buckton framework, so the parties’ costs may be paid from the estate on the indemnity basis, regardless of which construction succeeds. The court retains discretion to make an adversarial costs order where a party acts unreasonably or improperly, or causes unnecessary costs. The fact that the claimant is both personal representative and beneficiary does not, without more, make the proceedings hostile. The central question is whether the proceedings seek the court’s determination for the proper administration and distribution of the fund, rather than solely to advance a private beneficial claim.

The judgment concerned costs following the court’s earlier construction of Candia Midworth’s will in [2025] EWHC 2255. British Camelids Limited, acting as administrator and as a beneficiary, had unsuccessfully argued that shares passing to the predecessors of the first three defendants had failed and should be distributed only among other parties. The court also directed that a failed charitable gift be applied by scheme between certain defendants.

The issue was whether the proceedings were a category (1) or (2) application under Re Buckton, in which costs are ordinarily paid from the estate, or a category (3) hostile claim between rival beneficiaries attracting the usual order that the unsuccessful party pay the successful parties’ costs.

1. The court had discretion under Civil Procedure Rules 1998, rule 44.2, but the general rule is that the unsuccessful party pays the successful parties’ costs. Personal representatives are entitled to reimbursement for expenses properly incurred under sections 31(1) and 35 of the Trustee Act 2000, and CPR 46.3 provides for recovery from the estate on the indemnity basis where appropriate.

2. The three categories identified in Re Buckton are not determined solely by whether rival beneficiaries seek to establish who will receive the fund. A construction question, including one concerning the beneficiaries among whom the fund is to be distributed, is not ordinarily a hostile claim within category (3). The relevant distinction is whether the proceedings are, in substance, brought to obtain guidance or resolve an administration question for the benefit of the fund, or are purely hostile litigation to establish a private entitlement.

3. The categorisation is not determinative. Even in a category (1) or (2) case, an adversarial costs order may be made if the losing party acted unreasonably or improperly, or caused unnecessary costs.

4. There was no neutral trustee. The claimant had properly brought the construction question before the court as administrator, although it was also a beneficiary. Its position was supported by proper advice and was not unarguable. Neither side had conducted the litigation unreasonably or improperly.

5. The claim therefore fell within category (1), or alternatively category (2), of the Buckton framework. The claimant and the first, second and third defendants were each entitled to their costs out of the estate on the indemnity basis.

The judgment was a first-instance costs decision following the court’s earlier will-construction judgment reported at [2025] EWHC 2255.