England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/11/2015

Master Matthews :

1. The Claimant and the First Defendant were appointed co-executors of the will dated 24 November 1994 of Charles Henry Longley. The Claimant was the solicitor who drew the will. The First Defendant was the deceased's elder son. The deceased died on 9 May 2010, and probate was granted to both executors on 4 May 2012. The gross value of the UK estate was £602,827, and the net value was £465,578. On 30 July 2015 I made an order under the Administration of Justice Act 1985, section 50, for which I gave reasons at the time, removing the Claimant as co-executor. Those reasons involved no criticism of the Claimant. The result was to leave the First Defendant as sole executor and personal representative of the estate of the deceased ("the Estate").
2. On the order of 30 July being made, and it being then apparent that all parties wished to apply for costs orders, I invited written submissions on the question of costs, to be filed and served serially in accordance with a timetable set out in my order. The Claimant's original submissions are dated 6 August 2015, the Defendants' in reply are dated 14 August 2015, and the Claimant's final submissions in answer are dated 3 September 2015. I have considered all of them. This is my judgment on the question of the costs orders that should be made in the claim. I am sorry for the delay in producing it.
3. The claim in which I made the order of 30 July 2015 was begun by Part 8 Claim Form issued on 17 January 2014. It sought the removal of the First Defendant (as I shall call him for clarity, though he was the sole defendant at that stage) as executor. It was supported by the Claimant's own written evidence, the witness statement and exhibits together running to some 160 pages or so. The First Defendant acknowledged service on 6 February 2014, indicating an intention to contest the claim, and adding in manuscript the words "Removal is unnecessary". On 27 February 2014 the First Defendant filed his evidence in opposition to the claim, his witness statement and exhibits amounting to just under 2000 pages.
4. On 8 April 2014 Deputy Master Bartlett gave the First Defendant "permission if so advised to file and serve a Counterclaim setting out what remedies he seeks and brief reasons verified by a statement of truth by 22 April 2014". On 21 April 2014 he did indeed file a Counterclaim with further exhibits amounting together to about 100 pages. In both his original witness statement and in his counterclaim the First Defendant described himself in these terms:

"Former Home Office HM Prison Service Psychologist/Semi-retired Research Psychologist, Elder Son of, and Personal Representative of the Estate of, Charles Henry Longley Deceased".

5. Deputy Master Bartlett's order of 8 April 2014 also gave permission to the Claimant to file evidence in answer to the First Defendant's evidence, but limited to the Claimant's claim. On 14 May 2014 a witness statement, some ten pages long (no exhibits) of Peter Jones, solicitor, was filed and served pursuant to that permission. On 15 May 2014 Deputy Master Mark ordered that notice be given of these proceedings under CPR rule 19.8A to the First Defendant's siblings, Jane Eagers and Richard Longley, beneficiaries (with the First Defendant) under the will of the deceased. They both filed acknowledgments of service indicating an intention to contest the proceedings.
6. Two further orders were made, on 10 September 2014 and 16 October 2014, leading to the fixing of a date for trial of the claim on 3 February 2015, with one day's pre- reading. At that hearing, however, Deputy Master Mark did not in fact try the claim. Instead, after hearing argument, he made an order designed to resolve some at least of the differences identified by the parties. Amongst other things, his order joined Richard Longley and Jane Eagers as Second and Third Defendants respectively, required the Claimant to provide the First Defendant with certified copies of certain deeds, and resolved the question of what kind of guarantee should be given on an assent of estate assets. It also gave directions for the better identification of the nature and extent of the claims made by the First Defendant against the Claimant and for interim accounts and objections to such accounts to be filed and served.
7. The interim accounts were filed and served in March 2015. At the end of April the first Defendant's objections to them were filed and served. Evidence was filed on about 7 May 2015 on behalf of the Claimant to update the Court, suggesting that the directions given on 3 February had not so far resulted in any resolution of the differences between the parties. On 14 May 2015 the matter came before me for the first time on a directions hearing. I invited both sides to consider making application for the removal of either or both of the executors, and fixed a further hearing for 30 July 2015.
8. All parties responded to that invitation. The Claimant issued an application notice dated 2 June 2015 for an order removing both executors, to be replaced by an independent third party. Each of the Defendants issued a separate application notice, dated between 3 and 7 July 2015, for an order removing the Claimant as executor, but leaving the First Defendant in post. After hearing the parties at the hearing on 30 July, I made the order referred to above. But I made clear at the time in the reasons that I gave that I made the order on the basis simply of what was in the best interests of the beneficiaries of the estate in the circumstances as they now were. That in itself would not determine questions of costs.
9. As mentioned above, I invited and received written submission on the questions of the costs of the proceedings. In those submissions, the Claimant argued for two alternatives. The first was in substance that the First Defendant pay the Claimant's costs of the claim on the standard basis, but that the Claimant be entitled to recover from the estate, on the indemnity basis, any costs not recovered from the First Defendant. The second was that the Claimant should at least be entitled to recover his costs from the estate, on the indemnity basis.
10. In their submissions the Defendants also make two alternative applications. The first is that the Claimant pays the Defendants' costs of the claim, and the Defendants be entitled to recover from the partners of the Claimant's former law firm (Stuckey, Carr & Co) or its successor any costs not recovered from the Claimant. The second is that the Defendants' costs be paid by that firm. In each case the order is sought on the indemnity basis. Any claim to costs from the First Defendant or the estate is opposed.
11. The law relating to costs is set out in the Senior Courts Act 1981, s 51, and in the

Civil Procedure Rules 1998. The statute provides in part that, subject to rules of court, the costs of and incidental to all proceedings in the High Court are in the discretion of the court, and that the court has full power to determine by whom and to what extent the costs are to be paid. Under the Civil Procedure Rules ("CPR"), the general position is this. By CPR rule 44.2(1), the court has discretion as to whether costs are payable by one party to another, the amount of those costs, and when they are to be paid. And under rule 44.2(2), if the court decides to make an order about costs, the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but the court may make a different order.

12. However, trust and estate litigation is subject to special provisions. Rule 46.3 and para 1 of the Practice Direction to Part 46 contain the main rules. Rule 46.3 is as follows:

"(1) This rule applies where –

(a) a person is or has been a party to any proceedings in the capacity of trustee or personal representative; and

(b) rule 44.5 does not apply.

(2) The general rule is that that person is entitled to be paid the costs of those proceedings, insofar as they are not recovered from or paid by any other person, out of the relevant trust fund or estate.

(3) Where that person is entitled to be paid any of those costs out of the fund or estate, those costs will be assessed on the indemnity basis."

Rule 44.5, referred to in rule 46.3(1)(b) above, concerns costs payable under a contract, and is irrelevant to this case.

13. Para 1 of the Practice Direction to Part 46 is as follows:

"1.1 A trustee or personal representative is entitled to an indemnity out of the relevant trust fund or estate for costs properly incurred. Whether costs were properly incurred depends on all the circumstances of the case including whether the trustee or personal representative ('the trustee') –

(a) obtained directions from the court before bringing or defending the proceedings;

(b) acted in the interests of the fund or estate or in substance for a benefit other than that of the estate, including the trustee's own; and

(c) acted in some way unreasonably in bringing or defending, or in the conduct of, the proceedings.

1.2 The trustee is not to be taken to have acted for a benefit other than that of the fund by reason only that the trustee has defended a claim in which relief is sought against the trustee personally."

14. The Defendants refer also to CPR 57.13, which is the rule governing the bringing of claims such as this, to remove a personal representative, and which they say the Claimant did not fully comply with. In itself this is not a rule about costs. They also refer to a passage in William, Mortimer & Sunnucks, Executors, Administrators and Probate,19th ed 2008, para 66-06 (now found in the 20th ed 2013, para 68-06):

"Once misconduct is proven the court has a discretion as to the costs of a representative in an administration claim. In cases marked by fraud, evasion, or neglect of duty, the court will not merely refuse to allow them their costs out of the assets, but will order them to pay the costs of the action, or so much of the action as is attributable to the breach of duty on their part."

15. In my judgment, the first sentence of this passage simply summarises the effect of the caselaw which is now distilled into para 1.1(b) and (c) of the Practice Direction to Part 46, and adds nothing to that. The second sentence begins by repeating this, but then goes on to reflect the fact that, subject to the application of the special rules for

trustees and personal representatives, a representative is subject to the normal rules on costs.

16. The result is that, whether or not the personal representative is entitled to an indemnity for costs out of the estate, he or she can be made liable to the other party in costs in appropriate cases. It is thus possible (and sometimes happens) that a trustee/personal representative is ordered to pay the costs of another party, but then recoups these costs – as well as his or her own- from the estate.
17. Since each of the Claimant and the First Defendant was a party to these proceedings in the capacity of personal representative, the general rule in rule 46.3(2),(3) should apply, subject to the application of para 1 of the Practice Direction. So, on that basis, to the extent that each of the Claimant or the First Defendant cannot recover costs from elsewhere, each can recover costs out of the estate, on the indemnity basis.
18. But para 1 of the Practice Direction to Part 46 limits such costs to those which were "properly incurred". Whether such costs were so incurred depends on all the circumstances, including whether the personal representative (a) obtained directions before bringing or defending the proceedings, (b) acted in the interests of the estate or in substance for some other interest, and (c) acted unreasonably in bringing or defending, or conducting, the proceedings.
19. Paragraph (a) is concerned with third party litigation, so it is not applicable here. And in any event, as I understand the matter, neither the Claimant nor the First Defendant sought the court's directions before bringing or defending the proceedings. Therefore I have to look at the matters referred to in (b) and (c) in the previous paragraph. Did

the Claimant and the First Defendant act for the estate's or some other (including their own) interest, and/or did they act unreasonably?

20. The Claimant says he acted reasonably in commencing the claim, because the administration of the estate was deadlocked, a personal representative is not normally allowed to retire and hence the Claimant had to seek the removal of the First Defendant. He also says that he acted reasonably throughout, and that he has achieved the objective of unblocking the administration of the estate. On the other hand, he says that the First Defendant resisted the Claimant's claim until the last moment, insisting that the Claimant remain an executor with the First Defendant and so failing to offer any reasonable alternative. He also says that the First Defendant's conduct of the litigation was unreasonable, both in seeking to keep both executors as personal representatives, and in producing a large amount of wide-ranging and unfocused material.
21. The Defendants say in summary that (i) the Claimant's decision to commence the claim was unreasonable and not in the best interests of the estate, but in his own interests; (ii) the claim did not succeed in removing the First Defendant as executor; (iii) the Claimant has conducted the litigation unreasonably, whereas the Defendants have conducted their defence of the claim reasonably throughout. These allegations are amplified over more than twenty pages in the Defendants' written submission on costs.
22. Some things are clear at once. First, the relationship between the executors had completely broken down. Second, and as a result, the administration of the estate was deadlocked, and needed to be unblocked. Three, since the two executors could not agree on what to do, in order for the administration of the estate to be progressed, either one or both of them had to go. The Defendants suggest that the problem was not deadlock, at least at first, but a refusal by the Claimant to engage with the administration of the estate. The Claimant admits that there was a serious delay on his part in 2010-2011 in applying for and obtaining probate. The Defendants accept that later on there was deadlock between the executors, but assert that this arose through lack of co-operation on the part of the Claimant and his firm.
23. There are two other points to make clear now. One is that in this judgment I am not dealing with anything other than the costs of the claim brought by the Claimant. So I am not, for example, dealing at all with the various complaints made against the Claimant and his firm by the First Defendant in his counterclaim (which is still live, and will have to be dealt with in due course), nor with the substance of the administration itself, except insofar as they form part of the test which I have to apply. The other point is that, as there has been no cross-examination of witnesses, I am limited in the materials on which I can rely in coming to decisions on facts (to the extent that it is necessary to do so) for the purposes of this judgment.
24. As to the First Defendant's counterclaim, at the hearing on 30 July 2015 I ordered that he file and serve a brief statement of case summarising that counterclaim. He did so in due time. He summarises it as "allegations of Professional Negligence" against the Claimant and his firm. They run together complaints about the behaviour of the Claimant and his firm before the death of the deceased and complaints about such behaviour after the death. They are summarised by him under a number of headings: running down the estate 2010-11, probate delays, non-registration of testator's property in 1995 and failure to provide deeds and documents of title, financial and legal advice given to testator, Bank of Belgium/ICBC passbook, engaging a Hong Kong law firm, failure to disclose historical issues with management of testator's pension investments, devastavit/waste of asset assets, power of attorney issues and non-publication of death in London Gazette, negligence of the claimant and partners in the Claimant's firm, claim to have the First Defendant removed as executor and claim for loss of income by First Defendant.
25. As it was put to me at the hearing, however, in the administration of the estate there were four important issues on which the parties differed. These were (i) the terms on which the deceased's house should be assented to the First Defendant; (ii) the type of title guarantee that was appropriate to that assent; (iii) the question whether there should be supplied to the First Defendant a notarised copy of the deeds and documents of title; and (iv) whether the executors should pursue a claim against a bank in Hong Kong in relation to a deposit in that bank's predecessor by the deceased. In addition, although technically it forms no part of the administration of the estate itself, the First Defendant sought compensation from the Claimant and his firm for delays in the administration.
26. I expand on these points briefly in turn. First, as to the terms of the assent of the house to the First Defendant. Although the First Defendant and his two siblings were equally entitled to the residuary estate of the estate, including the house, the three beneficiaries had agreed between them that in fact the house should pass to the First Defendant alone as his beneficial property. It was unregistered land, though it appeared that the deeds had been in the Claimant's firm's custody for some years before the death of the deceased. In seeking an assent of the house to himself, the First Defendant required the Claimant to give an indemnity to him in respect of any loss that might be suffered because the Claimant had failed to procure the registration of the title to the house since his firm had had custody of the deeds. The Claimant declined to do so.
27. Secondly, and following on from the first point, the First Defendant insisted that the assent should be with full title guarantee, whereas the Claimant was only prepared to give a limited title guarantee, on the basis that he was only a personal representative, and did not know what the deceased might have done with the property during his life. This point was decided by Deputy Master Mark on 3 February 2015. Paragraph 4 of his order directs that any assent be with only limited title guarantee. So far as I am aware, no attempt has ever been made to appeal this decision.
28. Thirdly, the First Defendant conceived that he was entitled, not to certified copies of the deeds and other documents of title, but to notarised deeds and documents of title. The Claimant was willing to offer the former, but saw no reason for the expense of the latter. Again, this point was decided by Deputy Master Mark on 3 February 2015. Paragraph 3 of his order directs that the Claimant provide the First Defendant only with certified copies of the title deeds, the certification to be by a solicitor not from

the Claimant's firm. Similarly, so far as I am aware, no attempt has ever been made to appeal this decision either.

29. Fourthly, after the deceased's death, a passbook was found showing that the deceased had had an account with Banque Belge pour l'Etranger, a bank in Hong Kong (where the deceased had lived and worked for many years), with a final balance of some HK$306,000. But the balance shown as payable in the records of the successor bank after death was only HK$26,416, less than one tenth of the original sum. The First Defendant wanted the Claimant to pursue legal action against the bank. The Claimant thought this was not warranted.
30. Each of these disputes became magnified in correspondence. It would not be helpful to set all this out in detail. The second and third of them were decided by Deputy Master Mark, in each case in favour of the Claimant's position and against that of the Defendants. The First Defendant has chosen not to seek to appeal against those decisions, and they therefore stand, although he has sought to persuade the court subsequently to make orders inconsistent with those decisions, which has wasted court time and the parties' resources. I am not aware that the first and fourth disputes have ever been decided. I have not heard argument on them, and therefore do not decide them either. But I have read the documents filed, and for the limited purposes of the costs applications can comment as follows.
31. As to the first dispute, I have never heard before of any suggestion that, merely because a solicitor had custody on behalf of his client of the title deeds to unregistered land, he was under any kind of duty without more to procure the registration of the land. I was not referred to any authority for that proposition, or to any textbook that so asserts, and I know of none. There is no evidence that I have seen that the deceased(as the client) even sought his solicitor's advice as to whether the land should be voluntarily registered (assuming that were possible), much less that he actually instructed the solicitor to achieve it.
32. In these circumstances, I cannot therefore regard the refusal of the Claimant to accept liability for not registering the land, and therefore to compensate the estate or give an undertaking to do so, as in any way unreasonable. Indeed, in the absence of any evidence that the estate had suffered loss through (for example) some dealing with the land in the meantime I have difficulty in seeing what such 'liability' might be. But there is no evidence of any such dealing, let alone any resulting loss.
33. The First Defendant also says (p 20) that it was unreasonable of the Claimant categorically to assert that there had been no charges or mortgages in the past and that none subsisted in October 2012 or throughout 2013 when he had not conducted any appropriate searches. But as Deputy Master Mark said at the hearing in February 2015, there was no evidence at all that the deeds had been used as security. It was not unreasonable in the circumstances for the Claimant to take the view which he did, andthe current land registration legislation and guidance does not change that. Contrary to what the Defendants assert (p 21), the Claimant is not obliged to provide "evidence to assure the estate that there are and have been no encumbrances whilst the Deeds were in his safe custody".
34. As to the fourth dispute, it is clear from the documents which I have seen that the amount held on deposit by the deceased before his death was at most HK$306,000. At the rate of about 12-13 Hong Kong dollars to one pound over the last five years, this is perhaps £24,000 to £25,000. After the deceased's death, however, the balance was found to be some HK$26,416. This is equivalent to some £2000 or £2200 at most. So the maximum capital sum in dispute (not including interest) would be less than £25,000. Whilst this is not nothing, it is not such a large sum as would justify even the beneficial owner of a claim to that sum spending significant amounts in investigating, obtaining advice on and finally risking a multiple of it in suing in Hong Kong in respect of it. More importantly, it would be very unwise for a fiduciary such as a personal representative to do so, at least without the consent of (and perhaps an indemnity from) all the beneficiaries or a direction of the court. The Claimant did, asit happens, take Hong Kong legal advice.
35. In fact, however, the First Defendant appears to have received a statement from Industrial and Commercial bank of China (Asia) Ltd, the ultimate successor bank in Hong Kong (which he did not originally disclose to the court) showing that the difference between the larger and the smaller balances had been paid out and debited during the lifetime of the deceased. But the passbook was not updated. If this is right, there is no claim. So if any claim were made, it would be necessary to get over this document. That would be lengthy, expensive, and above all speculative. The First Defendant says that the claim against the Hong Kong bank, with accrued interest, is up to £200,000. But, in the light of the circumstances, I cannot see how any claim, even if it were a much better one than appears, could be worth that kind of sum. In my judgment this valuation is pure fantasy. Similarly, therefore, in these circumstances, I cannot regard the failure of the Claimant to take the question of legal action in respect of the bank balance further as in any way unreasonable.
36. I turn to the questions with which I must deal, and begin with the question whether the Claimant began the proceedings unreasonably and in his own interests, as the Defendants allege. They say (p 7) that the claim interrupted estate administration and incurred further costs for the First Defendant in maintaining the UK estate and funding his defence. But when this claim began in January 2014, the estate administration had been deadlocked (on the Defendants' own case, at p 8) since summer 2013. So in itself it did not interrupt the administration.
37. The Defendants complain however of a lack of co-operation of the Claimant and his firm. They characterise this (on p 8) as a "refusal to comply with precisely what the First Defendant required to complete administration of the estate". What the First Defendant required was acceptance of and compliance with his point of view in the four matters described in paragraph 24 above, plus compensation for delays in administration. However, on two of them the court has already held against the First Defendant, and on the other two I have concluded (without deciding any questions of law) that the Claimant's point of view was not unreasonable.
38. The Defendants further argue that they acted reasonably in defending the claim (p 9), because administration "was deadlocked through the Claimant and his firms refusal/failure to pursue debts owing to the estate, and to provide evidence of estate assets/liabilities based on the Deeds and Documents of Title". This simply repeats two of the matters which have already been dealt with above. It changes nothing. Two pages later the Defendants repeat this (p 9) as though it were new. They also complain of the failure of the Claimant to compensate the estate for the delays in progressingthe administration. But these are properly the subject of the counterclaim. Even if justified, they do not make the Claimant's commencing this claim in itself unreasonable.
39. The Defendants say it was unreasonable for the Claimant to seek the removal of the First Defendant, "simply for insisting that the Claimant and his proxies performed their lawful duties" (p 12). (I interpose to say that the Defendants frequently refer in their written submissions to the 'proxies' of the Claimant, as though the term bears some legal significance. However, I take it to mean simply the agents of the Claimant. On the materials that I have seen, there is no legal basis for treating the partners and employees of the Claimants as other than either his agents or his solicitors – but they are a kind of agent too.)
40. As to the Defendants' argument summarised in the previous paragraph, I reject it. The 'lawful duties' referred to are the matters referred to in paragraph 25 above, which I have already considered. The First Defendant's insistence that the Claimant perform those matters was itself unreasonable. The proper course in case of dispute between the executors was to ask the court to decide. As it happens, in the case of the second and third, the court was asked to, and did decide, and found against the First Defendant. In the case of the first and fourth, it might have been desirable that the court deal with them, but (for whatever reason) that did not happen. I have however concluded that the Claimant's point of view in relation to them was not unreasonable. Accordingly, I am not satisfied that these were in fact the "lawful duties" of the Claimant, and in my view therefore, at least for the limited purpose of dealing with costs, the insistence of the First Defendant on the Claimant's performance of them, in the absence of any direction from the court, was itself unreasonable.
41. The Defendants say that the Claimant's application was not in the best interests of the estate or its beneficiaries, "as is evidenced by the beneficiaries' acknowledgments of service" (p 14). I disagree. As I have said, the relationship between the executors had completely broken down by the time the proceedings were issued, and the administration was at a standstill. In my judgment, the only way forward was for at least one of the executors to go. The Claimant saw this and acted. The First Defendant did not and objected, saying that both executors should stay in post. In my judgment the Claimant's application was in the best interests of the estate. It is indeed only in the proceedings started by the Claimant to remove the First Defendant, and as a direct result of starting them, that the court has had the power, which it has now exercised, to remove the Claimant, thus leaving a single executor in post.
42. The Defendants also argue that the First Defendant has conducted the litigation reasonably and proportionately, having responded to the claim in a measured and restrained way (pp 18, 21). Again, I do not agree. On my reading of the thousands of pages of material placed before me in this case, the First Defendant's approach to the litigation has been (1) to characterise any failure or refusal by the Claimant to comply with his meticulous, pedantic and in my judgment unreasonable demands during the administration (see eg the letters sent by him to Mr Carr in March to June 2013) as itself evidence of the Claimant's unreasonable conduct, (2) to state and restate the allegations in prolix, quasi-scientific and repetitive language (see eg the 20 pages of the First Defendant's witness statement of 27 February 2014, at pp 167-186 of vol 2 of the hearing bundle), and (3) to purport to support such allegations by reference to voluminous written materials, most of which are of marginal relevance at best (see eg the correspondence between the First Defendant and the Land Registry in exhibit DCL7, in the Defendants' Supplementary Bundle, pp 144-205). I will not lengthen this judgment by citing examples in extenso, but they litter the nine volumes of papers with which I had to deal at the hearing.
43. Of course, I accept that the First Defendant is not a lawyer, but he is clearly an intelligent and articulate man, and in any event there are not two sets of rules, one for lawyers and one for laymen. If you embark on litigation without a lawyer, you cannot expect to be judged by rules different from those which apply to litigants legally represented.
44. I wish however to be clear. I am not saying or deciding that the Claimant has not been guilty of any conduct in the course of the administration of the estate which could be criticised. Indeed, he has already accepted that there were serious delays. And I am not now deciding any of the questions raised in the counterclaim. That is for another day. I am considering simply the question of the costs of the claim to remove the First Defendant as personal representative of the estate of the deceased. For this purpose I have to decide (inter alia) whether the Claimant and/or the First Defendant acted for the estate's or someone else's interest in bringing and defending this claim, and whether they acted unreasonably.
45. For the reasons given above I am satisfied that the Claimant was acting in the estate's best interests in bringing this claim to remove the First Defendant. It does not change matters that I did not make an order as asked by the Claimant in the claim form. The Claimant was right to say that the administration could not proceed with the two personal representatives in post, and the Defendant in my judgment was wrong to say that it could. At the same time, I cannot say that the First Defendant was acting in his own interest in resisting the claim. He genuinely (though in my view misguidedly) thought that the appropriate course in the best interests of the estate was that the two personal representatives should go on.
46. I turn to the question of reasonableness. In my judgment, it was reasonable for the Claimant to bring this claim, and he acted reasonably in adapting the claim to the circumstances as they altered. On the other hand, for the reasons already given, I do not think that the First Defendant acted reasonably in the way that he defended the claim. In the result, for the purposes of para 1.1 of the Practice Direction to CPR Part 46, I am of the opinion that, to the extent that the Claimant cannot recover his costs from elsewhere, he should recover them from the estate, on the indemnity basis, but that the First Defendant should not.
47. I now return to the question whether either party should be ordered to pay the costs of the other. In my judgment, it is appropriate that the court should make a costs order in this matter. Normally, in such circumstances, costs follow the event. On that basis, the Claimant, having sought an order removing the First Defendant, would have been unsuccessful, because instead I made an order removing the Claimant.
48. But in my judgment this is a case where the idea underlying the claim has been vindicated. This is that the two personal representatives cannot be expected to continue to work together, and at least one must go. To launch the claim was the right course to take at the time. The First Defendant resisted that at first, and only later suggested that the proper order was that the Claimant should be removed. The Claimant meanwhile suggested that both should be removed. I am satisfied that this was on the basis, not of seeking to disadvantage the First Defendant, but from a genuine concern that the administration might not be safe in the hands of the First Defendant.
49. My reasons for preferring to remove the Claimant rather than the First Defendant (or both of them) in this case were exceptional, and depended in large part on the fact that there were only three adult beneficiaries interested in the estate, all siblings (and latterly defendants), that they all wished the First Defendant and not the Claimant to continue to act, and that they were willing to accept any risk inherent in entrusting the administration to the First Defendant alone.
50. In my judgment, whether or not the Claimant has in substance been successful in bringing this claim, and whether or not he has committed any breaches of duty in the administration, he can be regarded as having done the right thing in the interests of the estate and its beneficiaries in bringing these proceedings. That is conduct to be encouraged. The behaviour of the First Defendant, on the other hand, in conducting the litigation in such an unreasonable way as I have described, is not. In my judgment it is right that the First Defendant should pay the Claimant's costs of the claim, on the standard basis if not agreed. To the extent that those costs are not recovered from the First Defendant, they will be recoverable from the estate on the indemnity basis, as set out above.
51. I add a word on the position of the Second and Third Defendants. Their part in the litigation has been small. They were brought into it by notices under CPR r 19.8A. They had a choice as to whether to become parties, and they chose to do so, in each case explicitly supporting the action taken by the First Defendant, their brother. They attended the hearing on 30 July 2015, and confirmed that they wanted him to be left as sole executor. They have therefore made themselves vulnerable to a claim that they too should be liable to pay the Claimant's costs. However, the Claimant has not sought an order against them, and so I make no order as against them. I make no order in their favour either, because they sided with the First Defendant's position in objecting to the claim.
52. I invite Mr Calland, counsel for the Claimant, to draft a form of the order which is needed to give effect to this judgment, and invite both parties to make any submissions in writing on any consequential applications that there may be. They should be received by the court, and copied to the other side, by 4 pm on 25 November 2015. Any comments on the form of order, and any replies to those submissions should be made so as to be received and copied by 4 pm on 27 November. I will deal with such submissions on the papers in the first instance.