England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/10/2011

Mr Justice Morgan:

1. This judgment deals with the costs of this case in which I handed down judgment on 24^th June 2011: [2011] EWHC 1616 (Ch). The issues in the case and my decisions in relation to them are set out in detail in that judgment. The case concerned a will dated 13^th November 2006. The testatrix died on 19^th October 2008. Under the will, if valid, the Defendant was the sole executor and sole beneficiary. The Claimant challenged the will on three grounds. The Claimant contended: (1) the testatrix lacked testamentary capacity when she purported to make the will; (2) the testatrix did not know and approve the contents of the will; and (3) the will was the result of undue influence of the testatrix by the Defendant. I rejected all three grounds of challenges to the will.
2. Following judgment, the parties agreed that the question of costs should be dealt with by me after I had considered written submissions from the parties. I then received written submissions from counsel for the Claimant and from counsel for the Defendant. Following receipt of the submissions for the Defendant, I acceded to an application from counsel for the Claimant that he be permitted to make further submissions in reply and in due course I received those further submissions.
3. The Claimant contends that there should be no order as to costs up to and including 26^th September 2010; thereafter, the Claimant should pay the Defendant's costs, on the standard basis, such liability not to be enforced without the leave of the court. The restriction on enforcement is attributable to the fact that the Claimant was in receipt of public funding prior to and in particular after 26^th September 2010.
4. The Defendant contends that the Claimant should pay his costs of the action, to be assessed on the standard basis. It is said that because the Claimant became publicly funded on 2^nd February 2010, there should be no restriction on the enforcement of such an order for costs prior to 2^nd February 2010 but it is accepted that the order for costs in relation to costs from and including 2^nd February 2010 should be subject to a restriction that the order is not to be enforced without the leave of the court.
5. The essential issue between the parties therefore is whether I should make an order for the Defendant's costs throughout or whether I should direct that the Defendant is only to have his costs from 26^th September 2010. It is agreed that for the period during which the Claimant was publicly funded, I should direct that any order for costs is not to be enforced without the leave of the court.
6. The usual approach under the Civil Procedure Rules is that the court directs that the costs should follow the event. That approach would lead to an order that the Claimant should pay the Defendant's costs throughout.
7. The Claimant relies on the approach identified in Spiers v English [1907] P 122. That case identified two sets of circumstances, in particular, in a case concerning a challenge to a will, in which the court may depart from the approach that costs should follow the event. The first set of circumstances was where the testator or the beneficiaries were the essential cause of the challenge to the will; in such a case, the court may consider that it is appropriate to order that the costs are to come out of the estate. The second set of circumstances is where the facts of the case led reasonably to an investigation of the matter: in such a case, the costs may be left to be borne by those who have incurred them.
8. The Claimant does not say that this case comes into the first category identified in Spiers v English. Instead, the Claimant contends that she was reasonable in investigating the matter and challenging the will on all three grounds until she had received sufficient evidence for her to decide whether or not to pursue matters and to do so at her own risk as to costs. She submits that such a point only arrived following exchange of witness statements and following a further time for her to read and consider those statements. That point, she says, was reached on 26^th September 2010.
9. The Defendant does not dispute that the court can have regard to the guidance in Spiers v English. The Defendant does however say that this guidance is not helpful to a party who unsuccessfully challenges a will on the ground of alleged undue influence. Further, it is said that by January 2010 the Claimant had been shown evidence in relation to testamentary capacity and knowledge and approval which ought to have satisfied her that it was no longer reasonable to require an investigation of the facts. After January 2010, the Claimant continued with her challenge, including a challenge based on alleged undue influence when, it was said, there was no credible evidence to support such an allegation.
10. In the course of their submissions, counsel referred me to a number of other authorities in addition to Spiers v English. These were: Re Cutclliffe's Estate [1959] P 6, Re Fuld [1968] P 675, Re Good [2002] WTLR 801 and 1311 and Kostic v Chaplin [2008] WTLR 655.
11. In coming to my conclusion as to the appropriate order for costs, I have reviewed the course of the litigation and had regard, in particular, to the following:

(1) The will was made on 13^th November 2006 and the testatrix died on 19^th October 2008;

(2) In November 2008, the Claimant's solicitors wrote to the solicitors who had acted in relation to the preparation of the will seeking information about what had transpired; the solicitors who acted in relation to the will acted for the Defendant in this litigation;

(3) In December 2008, the Defendant's solicitors sent to the Claimant's solicitors an attendance note relating to the preparation of the will and the relevant file;

(4) By mid-February 2009, the Claimant's solicitors had a letter from Dr Cheung and a complete set of the testatrix's medical records;

(5) When the Defendant's solicitors sought to warn off the caveat entered by the Claimant's solicitors against the grant of probate to the Defendant, the Claimant's appearance to the warning off relied on alleged actual undue influence; the caveat was later removed by agreement and probate was granted to the Defendant;

(6) Prior to June 2009, the Claimant's solicitors obtained Birkett Long's file in relation to an earlier attempt by the testatrix to make a will;

(7) On 10^th June 2009, the Claimant's solicitors sent a pre-action protocol letter putting forward all three challenges to the will;

(8) On 8^th January 2010, the Defendant's solicitors replied to the Claimant's protocol letter; the Defendant's solicitors sent a report dated 24^th September 2009 prepared by Doctor Campbell; that report discussed not only the medical evidence but also referred to three witness statements, all signed in July 2009, by the Defendant, Mr Jones and Mrs Pearce;

(9) The Defendant's letter of 8^th January 2010 gave the Claimant until 22^nd January 2010 to confirm whether she intended to proceed;

(10) On 12^th January 2010, the Claimant's solicitors asked for copies to the witness statements referred to in Dr Campbell's report and on 15^th January 2010 that request was declined;

(11) The Claim Form was issued on 4^th February 2010 and a Defence was served on 2^nd March 2010;

(12) Witness statements were exchanged on 25^th August 2010;

(13) At the trial, I found that the Defendant was a reliable witness but that I ought to be cautious about the evidence of the Claimant; in some respects, I did not accept the Claimant's evidence.

12. The Claimant accepts that there came a time when it was no longer reasonable for her to put forward her challenges based on testamentary capacity and want of knowledge and approval. The Claimant says that such a time only came following exchange of witness statements. I disagree. I conclude that such a time had arrived not long after the Defendant's solicitors' letter of 8^th January 2010. I think that the Claimant can say that she needed 3 weeks (rather than the 2 weeks allowed in the letter) to consider the position. That takes one up to 29^th January 2010.
13. As regards the challenge based on alleged undue influence, I take the same view as was taken by Rimer J in Re Good , namely, that the Defendant should not be left to bear his own costs of clearing his name in relation to that allegation.
14. Accordingly, the position in relation to the period from 29^th January 2010 is clear: the Claimant should pay the Defendant's costs, on the standard basis, in relation to the period from 29^th January 2010. It seems to be the case that the Claimant was publicly funded from 2^nd February 2010 although I have not seen the date of any certificate of funding. It may be that the Defendant did not incur any costs between 29^th January 2010 and 2^nd February 2010 so that that short period of time will not need to be separately assessed. The parties agree that the order for costs in relation to the costs from 2^nd February 2010 is to be subject to the restriction that the order is not to be enforced without the leave of the court.
15. As regards the period before 29^th January 2010, this was a period before the claim was brought. No submissions were made to me as to the period during which it could be said that the costs incurred could be regarded as potentially recoverable as the costs of defending the claim. The Defendant's submissions did not seem to press for an order for costs in relation to the period before late January 2010. In the circumstances, I will direct that there should be no order for costs in relation to the costs up to 29^th January 2010.
16. The parties are agreed that there should be orders for public funding assessment of costs for such period as one or other party was publicly funded.