Luke Ellis v Stephen Ellis & Ors

In contentious probate proceedings, the general rule remains that costs follow the event. The two probate exceptions are only guidelines and require a positive factual case before the court departs from that rule.

The first exception is narrow. It concerns confusion or uncertainty in the testamentary documents or the testator’s intentions, rather than disappointed expectations created by the testator’s statements. The second exception may apply while reasonable investigation of the will’s validity continues, but it ends when the parties have sufficient information to assess their positions and the dispute becomes hostile litigation.

A refusal or delay in mediation is not automatically unreasonable. It must be assessed in context, including the adequacy of disclosure and the realistic prospects of useful mediation. A sufficiently clear and genuine Civil Procedure Rules 1998 Part 36 offer attracts the prescribed consequences, subject to adjustment where their full application would be unjust.

The claimant sought to propound the will of Yeamon Keith Care and remove a caveat. Vivian Care challenged the will and advanced claims concerning testamentary capacity, knowledge and approval, due execution and proprietary estoppel. Stephen Ellis and Stephen Berryman, as executors, remained neutral but incurred litigation costs.

The substantive dispute was resolved in favour of the claimant. This judgment determined the consequential costs issues, including alleged pre-action failures, delay in agreeing to mediation, the probate exceptions, the validity and effect of a Part 36 offer, the executors’ costs and payments on account.

1. General rule and conduct. Under Civil Procedure Rules 1998 rr 44.2(2), 44.2(4) and 44.2(5), costs ordinarily follow the event, subject to all the circumstances, including conduct. The claimant had waited sufficiently long for Vivian to formulate his case. A pre-action letter would not have altered the litigation’s trajectory and would probably have caused further delay. The claimant’s decision not to mediate before September 2023 was reasonable because Vivian had not provided important evidence and disclosure, including medical material. Silence in response to an invitation to mediate is not automatically unreasonable.
2. Probate exceptions. The first exception did not apply. Following In Re Cutcliffe’s Estate and Leonard, it is directed to confusion or uncertainty in the testamentary papers or intentions, not to familial expectations or hopes that the testator would make a particular gift. The second exception is fact-specific. The investigation period had ended by the end of August 2021, save for the due-attestation issue, which ended shortly after 1 March 2022. No order as to costs was therefore made for the relevant periods.
3. Part 36. The offer was valid despite leaving conveyancing and other mechanics to be resolved. It was a genuine attempt to settle, representing approximately 14.6 per cent of the estate. The claimant had beaten it, so Civil Procedure Rules 1998 r 36.17(4) applied. The interest uplift on costs was reduced to 5 per cent because applying the full uplift for the whole period would be unjust; the remaining consequences applied.
4. Executors and payment on account. The third defendant was ordered to pay the executors’ litigation costs on the standard basis, subject to the no-costs periods. The claimant was awarded £94,000 on account. The executors were awarded 85 per cent of their relevant costs on account.