England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY

		Rolls Building, Royal Courts of Justice, 7 Rolls Buildings, London, EC4A 1NL
		21 December 2015

Mr Justice Newey :

1. The normal rule in civil litigation is, of course, that costs follow the event. In the present case, there is no doubt that the claimant, Mr Stephen Breslin, has won. If and to the extent, therefore, that the normal rule is applicable, I should make a costs order in Mr Breslin's favour.
2. In the context of probate proceedings, however, the Court may make an order for costs to be paid out of the estate where the testator, or a principal beneficiary, is to be viewed as "really the cause of the litigation". Further, the Court may leave the parties to bear their own costs if the circumstances reasonably led to an investigation of the matter.
3. Mr Angus Burden (who appeared for the second defendant, Mrs Anne Lockwood) and Mr John Robson (who appeared for the third defendant, Miss Linda Breslin) each argued that Mr Breslin caused the present litigation. Mr Burden summarised his contention on this aspect in these terms:

"[H]ad [Mr Breslin] gone about matters in the ordinary way i.e. by taking his aunt to an independent solicitor to preside over the execution, as that solicitor was willing (and indeed keen) to do, or even getting some friends of Marjorie [Beck (i.e. the testatrix)] to witness the Will, then this litigation would not have been necessary."

4. On balance, however, I agree with Mr Charles Holbech that Mr Breslin (for whom he appeared) is not to be seen as "really the cause of the litigation". The proceedings might possibly have been avoided if Mr Breslin had arranged for Mrs Beck to execute her will before the solicitor who drafted it, Mr Adrian Schuck, but the mere fact that someone can be said to be responsible for a will having been executed otherwise than in front of a solicitor cannot make it appropriate to view him as the cause of litigation about it. The statement that Mr Robert Speke gave to Mr David Coombes can more plausibly be seen as having occasioned the litigation, but that cannot be laid at Mr Breslin's door.
5. Nor, to my mind, should Mrs Beck be regarded as having caused the litigation. In this respect, Re Cutcliffe's Estate [1959] P 6 is relevant. Hodson LJ there indicated that a testator is not to be taken to have "promoted litigation by leaving his own affairs in confusion" just because he "misled other people and perhaps inspired false hopes in their bosoms that they may benefit after his death".
6. Nor again, I think, should I decline to make a costs order in Mr Breslin's favour simply on the footing that the circumstances warranted an investigation into the will's validity. The Courts appear to be less willing to deprive a party of costs on this basis than was once the case. Here, Miss Breslin can, as it seems to me, fairly be taken to have made a commercial decision which, in the event, has proved mistaken. It is fair that she should pay at least some of the costs that her brother has had to incur.
7. Mrs Lockwood is in a different position. She sought to avail herself of CPR 57.7(5), which provides:

"(a) A defendant [to a probate claim] may give notice in his defence that he does not raise any positive case, but insists on the will being proved in solemn form and, for that purpose, will cross-examine the witnesses who attested the will.

(b) If a defendant gives such a notice, the court will not make an order for costs against him unless it considers that there was no reasonable ground for opposing the will."

Mr Burden accordingly cross-examined the witnesses who attested Mrs Beck's will and made observations on the evidence but did not go so far as to put forward a positive case that the will was invalid.

8. Having regard to the statement Mr Speke gave to Mr Coombes, it cannot, as it seems to me, be said that there was no reasonable ground for opposing Mrs Beck's will. Mr Holbech sensibly accepted this, but objected that the conduct of Mrs Lockwood and her lawyers had gone beyond cross-examining the witnesses. In my view, however, it would not be appropriate for me to make any costs order against Mrs Lockwood. I shall simply leave her to bear her own costs.
9. Mr Holbech argued that I should nonetheless order Miss Breslin to pay all her brother's costs: the cost of proving due execution was, Mr Holbech suggested, one that Mr Breslin was forced by Miss Breslin to incur, regardless of her sister's notice to cross-examine the witnesses. In contrast, Mr Robson maintained that it would not be fair or reasonable for Miss Breslin to have to bear any of the costs attributable to Mrs Lockwood's involvement.
10. In my view, the right course is to order Miss Breslin to pay one half of Mr Breslin's costs from 19 October 2015, when Miss Breslin withdrew the allegation of undue influence that she had made. Up to 19 October, when the allegation of undue influence was live, Miss Breslin should bear three quarters of Mr Breslin's costs.
11. The next question that arises concerns the basis of assessment. Mr Holbech submitted that I should order at least some of Mr Breslin's costs to be assessed on the indemnity basis. Among other things, he contended that an order for indemnity costs is appropriate because (as he said) the allegation of undue influence never had a real prospect of success.
12. In the end, however, I have not been persuaded that the allegation of undue influence (which was in any case withdrawn before the trial) or anything else so takes the case away from the norm as to warrant indemnity costs. I shall, therefore, order Miss Breslin to pay three quarters of Mr Breslin's costs up to 19 October 2015 and one half of his costs after that date, to be assessed in detail on the standard basis if not agreed.
13. Finally, Mr Holbech asks me to make an order for a payment on account against Miss Breslin. CPR 44.2(8) states that, where the Court orders a party to pay costs subject to detailed assessment, it will order the party to pay a reasonable sum on account of costs, unless there is good reason not to do so. Here, there is no such reason. I shall, accordingly, order a payment on account. Having considered the parties' submissions, the appropriate figure seems to me to be £70,000.
14. I should be grateful if counsel would agree an order reflecting my conclusions.