Catherine O’Boyle v Mary Vivien Wallis

A representative appointed under CPR 19.12 does not automatically become personally liable for all costs payable by the estate. The court has a discretion, whether or not the representative is joined as a party, and must decide whether personal liability is just in all the circumstances.

A claimant’s representative will typically be liable for costs incurred while the claim continues after appointment, but the court should be cautious about imposing liability for costs incurred beforehand. Relevant considerations include prior involvement, funding, acceptance of the risk, causation and the representative’s conduct. A representative who acts reasonably in bringing a long-running claim to an end should not ordinarily face indemnity costs merely because the estate’s earlier conduct was unreasonable.

The proceedings concerned claims arising from commercial leases and alleged conversion of equipment. They had remained largely at the pleading stage for several years and were struck out by Master Kaye on 18 July 2025. The order required “the Claimants” to pay the respondent’s costs on the indemnity basis and £100,000 on account.

Following the death of the original claimant, the Appellant had been appointed under CPR 19.12 to represent his estate. She appealed to the High Court against the order insofar as it imposed personal liability on her. The issues included standing following her bankruptcy, extension of time, abuse of process, the principles governing a CPR 19.12 representative’s costs liability, and the proper basis and amount of any liability.

1. Standing and time. The appeal was brought in the Appellant’s representative capacity, which was unaffected by her bankruptcy. She therefore had sufficient interest to appeal directions concerning the terms and liabilities of her appointment. Any extension of time had been implicit in the permission order; alternatively, an extension was granted because the short delay caused no discernible prejudice and refusal would have been disproportionate.

2. The Appellant’s conduct in accepting the existing order, supporting a wasted-costs application and petitioning for bankruptcy did not create an abuse of process. Accepting that an order was effective unless set aside was not inconsistent with appealing against it.

3. Costs liability of a CPR 19.12 representative. Section 51 of the Senior Courts Act 1981 gives the court discretion to determine by whom and to what extent costs are to be paid. A representative appointed under CPR 19.12 is not equivalent to a Personal Representative, whose usual personal liability is connected with control of the estate assets. The court must instead ask whether personal liability is just in all the circumstances. The relevant starting point is generally similar to that for a litigation friend.

4. For a claimant’s representative, it will typically be just to impose liability for costs which would have been ordered against the estate, because the representative can decide whether the claim continues. That remains a discretion. A defendant’s representative has no equivalent presumption; bad faith, improper or unreasonable conduct, or personal benefit may justify an order.

5. The Master erred by treating personal liability as automatic and by failing to exercise the required discretion. The High Court therefore exercised the discretion itself. The Appellant was not personally liable for costs incurred before 14 March 2025, when she was appointed. She was liable for costs incurred thereafter, but on the standard basis because her conduct was not unreasonable to the high degree required for indemnity costs.

6. The £100,000 payment on account was set aside insofar as it applied personally to the Appellant. No replacement payment was ordered because there was insufficient evidence of the relevant costs and of the payment made under the confidential wasted-costs settlement. The estate and Mrs O’Boyle remained liable for the respondent’s costs on the indemnity basis, subject to the earlier standard-basis order. The appeal was allowed to that extent.

• High Court (Chancery Division): Appeal allowed in part against Master Kaye’s order of 18 July 2025. The Appellant’s personal liability was limited and the payment on account was set aside as against her.