Anilkumar Patel v Jayaben Patel (Consequential matters)

Where personal representatives cannot agree on funeral arrangements and properly seek the court’s directions, the court may order costs to be paid from the estate. The ordinary costs rule remains relevant, but the court must consider all the circumstances, including whether the deceased’s failure to leave clear wishes caused the litigation.

Under CPR 46.3 and Practice Direction 46, personal representatives are generally entitled to an indemnity from the estate for costs properly incurred, where they acted in the interests of the estate and did not act unreasonably. On an indemnity assessment, disproportionality alone does not justify reduction, but unreasonable costs may be disallowed.

Permission to appeal requires a real, not unreal, prospect of success or another compelling reason. The court retains discretion even where that threshold is met.

The judgment addressed consequential matters following the court’s decision on a dispute between two personal representatives about the funeral arrangements for their deceased father. The court had directed that the body be released jointly to them, cremated in England in accordance with Hindu rites, and that they arrange the funeral jointly.

The claimant sought costs against the defendant. The defendant sought permission to appeal. The court considered the ordinary costs rules, the special rules governing trustees and personal representatives, summary assessment of costs, and the principles governing permission to appeal, including challenges to factual findings and complaints about evidence and the conduct of the hearing.

1. Costs. The claimant was the successful party overall because he succeeded on the main issue. The ordinary rule would therefore favour an order in his favour, but the court had to consider all the circumstances.
2. The disagreement was properly brought before the court and arose substantially because the deceased had not recorded his funeral wishes in permanent form. The case was therefore analogous to probate litigation in which the deceased’s lack of clarity causes the dispute. The court ordered that the costs of both parties come out of the estate.
3. Both parties had acted as personal representatives, had sought directions, had acted in the interests of the estate and had not acted unreasonably. Under CPR 46.3 and Practice Direction 46, each was accordingly entitled to an indemnity from the estate for properly incurred costs. The special protection did not extend to an appeal from a directions order.
4. The claimant’s costs were summarily assessed on the indemnity basis. Solicitors’ costs were reduced from £9,558 to £6,500 because it was unreasonable to have a grade A fee earner undertake all the work and attend the hearing. Counsel’s fees were allowed because they were not unreasonably incurred or unreasonable in amount. Disproportionality was not, by itself, a basis for reduction on the indemnity basis.
5. Permission to appeal. A first appeal required permission. Under CPR 52.6, permission could be granted only if there was a real prospect of success or some other compelling reason. “Real prospect” meant a prospect which was not unreal, and the court retained a discretion even if the threshold was satisfied.
6. The court was not required to investigate matters or evidence not put forward by the parties. An appellate court should not interfere with primary factual findings unless the judge was plainly wrong, and should not subject the judgment to narrow textual analysis. Re-argument of the case, complaints about matters not challenged below, and points which would not have affected the result did not establish a real prospect of success.
7. The application for permission to appeal was refused.

First-instance consequential judgment following the court’s earlier decision on the funeral-arrangements claim, reported at [2025] EWHC 560 (Ch). Permission to appeal to the Court of Appeal was refused.