Shepherd & Co Solicitors v Peter Ian Brealey
[2022] EWHC 3229 (KB)
Peter Ian Brealey v Shepherd & Co Solicitors
26 March 2024
[2024] EWCA Civ 303
Court of Appeal
A solicitor who was also an executor of a will tried to get paid for his time. The will didn't say he could charge. The court said he needed written agreement from *all* the executors, and he didn't have it. The court also said he didn't give enough evidence to justify payment using a special court power, so the solicitor lost.
Key Facts
- •Second appeal concerning costs in third-party assessment proceedings under section 71(3) of the Solicitors Act 1974.
- •Dispute over solicitor-executor's entitlement to fees for time spent administering the estate.
- •Will lacked an express charging clause for the executor's time.
- •Mr. Shepherd, a partner in the defendant firm, was an executor.
- •Another executor, Mr. Smyth, was inactive.
- •Total fees billed were £153,507.38.
- •The claimant challenged the level of costs and the approach to estate administration.
Legal Principles
Scope of challenge under section 71(3) of the Solicitors Act 1974.
Tim Martin Interiors Ltd v. Akin Gump LLP [2011] EWCA Civ. 1574 and Kenig v. Thomson Snell & Passmore LLP [2024] EWCA Civ. 15
A trustee acting in a professional capacity is entitled to reasonable remuneration under section 29 of the Trustee Act 2000, subject to subsection (5) and requiring written agreement from each other trustee.
Trustee Act 2000, sections 28(5), 29, 35
The court's inherent jurisdiction to remunerate trustees or executors is to be exercised sparingly and in exceptional circumstances, balancing the gratuitous nature of the office with the need for good trust administration.
Re Worthington [1954] 1 WLR 526, Boardman v. Phipps [1966] UKHL 2, Guinness Plc v. Saunders [1990] 2 AC 663, Re Duke of Norfolk’s Settlement Trusts [1982] Ch 61
Section 29(2) of the Trustee Act 2000 requires the written agreement of *all* current executors/trustees for remuneration, not just those actively involved.
This case's interpretation of Trustee Act 2000, section 29(2)
Outcomes
Appeal dismissed.
The absence of Mr. Smyth's signature on any agreement regarding Mr. Shepherd's remuneration was fatal to the defendant firm's claim under section 29(2) of the Trustee Act 2000. The court also found that the Costs Judge's refusal to exercise the court's inherent jurisdiction was a permissible exercise of discretion due to lack of evidence from Shepherd & Co. supporting the application.