Catherine O’Boyle v Mary Vivien Wallis

A representative party may be personally liable for costs incurred while acting as representative, but the extent of that liability depends on the circumstances and the nature of the claims. Where jointly pursued claims cannot practically or principledly be separated, joint and several liability may be appropriate. A payment on account should not be ordered without sufficient evidence to exclude double recovery or permit a reliable estimate. A client is presumed liable for solicitors’ fees despite payment by third parties unless a binding agreement establishes that the client would never be liable. Permission for a further appeal requires a realistic prospect of success or another compelling reason.

This was a consequential judgment following the court’s earlier judgment, which had allowed the claimant’s appeal in part against Master Kaye’s order of 18 July 2025. The court determined the wording of the consequential order, liability for costs, payment on account, costs of the appeal and permission for a further appeal.

The principal issues were whether the representative claimant should be jointly and severally liable for costs incurred during the relevant period, whether an interim payment could reliably be assessed in light of possible payment by former solicitors, whether third-party funding defeated recovery under the indemnity principle, how the parties’ partial success should affect appeal costs, and whether the respondent had a real prospect of success on a further appeal.

1. Consequential order and costs liability. The appeal had been allowed only in part. The court refused to limit the claimant’s liability to costs incurred solely as against her and the estate. The claims of Mrs O’Boyle and Mr O’Boyle’s estate were pursued together and were not capable of principled or practical separation. It was therefore appropriate for the respondent to have recourse against the claimants jointly and severally for costs incurred from 14 March 2025 to 18 July 2025. Those costs included costs reasonably and proportionately incurred in connection with the claimant’s application to be appointed representative.
2. Payment on account. CPR 44.2(8) required a reasonable sum to be paid on account unless there was good reason otherwise. The respondent’s evidence did not explain what had been paid by TF in settlement of wasted costs, or how that payment related to the period for which an interim payment was sought. The court could not make a reliable assessment and would not order payment in respect of costs which might already have been recovered. Nevertheless, the claimant’s proposal of £10,000 was accepted as a modest sum which could be ordered on the evidence available.
3. Costs of the appeal. The claimant was the plainly successful party on the principal issues, including standing and abuse of process, although she had not avoided liability altogether. Applying CPR 44.2(2) and the broad discretion under CPR 44.2(6), the respondent was ordered to pay 80% of the claimant’s appeal costs, summarily assessed at £3,599.90, with set-off against the claimant’s liability.
4. Indemnity principle. The claimant was presumed personally liable for her solicitors’ fees. Payment by family members did not defeat recovery. The challenge would have required evidence of a binding agreement that she would not be liable to pay the fees in any circumstances, and no such agreement was established.
5. Permission to appeal. The respondent had jurisdiction to seek permission on the first-instance issues of standing and abuse of process because those were original decisions. Applying the first-appeals test, there was no realistic prospect of success and no other compelling reason. Permission was refused.

The judgment followed the court’s earlier decision allowing the claimant’s appeal in part against Master Kaye’s order dated 18 July 2025. Permission to appeal on the issues of standing and abuse of process was refused, subject to any application to the Court of Appeal.