Rosemary Shufflebotham & Anor v Susan Heather Shuff-Wentzel (Costs)

In trustee costs disputes, the court must assess the character of the proceedings, the relief sought, the parties’ positions and their conduct. An application concerning trustees may be treated as hostile litigation, even where court intervention is needed to resolve an estate deadlock and some relief benefits the estate. Where the dispute is hostile, costs ordinarily follow the event and are payable by the unsuccessful parties rather than from the estate. That personal liability does not, without more, remove the trustees’ indemnity against the estate. The indemnity remains available for costs honestly and reasonably incurred in administering the trust.

The judgment determined the costs of an application by two executrices to remove themselves and the third executrix, and to appoint a professional executor and trustee. The application failed to remove the Defendant, although the Claimants were permitted to resign and a new professional executor and trustee was appointed.

The Defendant was the successful party overall. The issues were whether the Claimants should pay her costs personally or whether the estate should bear them, and whether the Claimants could recoup those costs under their trustee indemnity.

1. Costs ordinarily follow the event under CPR 44.2, with overall success assessed as a matter of commonsense. The Defendant was successful overall, although the Claimants achieved some of the relief originally sought.
2. The conventional categories identified in Re Buckton [1907] 2 Ch 406 and Price v Saundry [2019] EWCA Civ 2261 are useful but not exhaustive. The court must examine the character of the proceedings, the relief sought, the positions adopted and the parties’ conduct. An opposed removal application will frequently be a beneficiaries’ dispute, as explained in Hanson v Coleman [2025] EWHC 116 (Ch).
3. This application was hostile litigation because its central purpose included removing the Defendant against her will. The Defendant was therefore entitled to costs against the Claimants personally rather than against the estate.
4. The Claimants were jointly and severally liable because they had joined the same application, sought the same relief and had not distinguished their positions.
5. The Claimants’ indemnity remained available. They had acted honestly and reasonably, and their imperfect conduct did not justify depriving them of the indemnity. They were entitled to call on the estate to meet the Defendant’s costs.