Michael Lumb v Stuart Lumb
[2023] EWHC 2052 (Ch)
P (Statutory Will), Re (Costs Application)
19 February 2024
[2024] EWCOP 9
Court of Protection
A brother was arguing over how to change their sibling's will. He made some arguments the court considered unreasonable and wrong. Because of this, the court made him pay the legal costs involved.
Key Facts
- •Application for costs by the Official Solicitor (OS) acting as litigation friend for P.
- •Dispute concerned a variation to a statutory will.
- •Procedural issue: Deputy disputed the need for notification of beneficiaries under PD9E paragraph 9.
- •Dispute centred on residuary bequest to unidentified charities and notification of carers.
- •OS argued for notification to carers and Attorney General regarding charitable bequests; court agreed.
- •Court dispensed with notification to carers due to compelling reasons.
- •Deputy's arguments deemed to fundamentally misunderstand the purpose of service rules.
- •Deputy's arguments found to be without merit and ignored clear case law.
Legal Principles
General rule: Costs in proceedings concerning P's property are paid by P or charged to P's estate (COPR 19.2).
Court of Protection Rules 2017 (COPR) 19.2
Court has discretion to depart from the usual rule if circumstances justify (COPR 19.5(1)).
Court of Protection Rules 2017 (COPR) 19.5(1)
Factors for departure from the usual rule include conduct of parties, partial success, and role of public bodies (COPR 19.5(1)(a-c)).
Court of Protection Rules 2017 (COPR) 19.5(1)(a-c)
Conduct includes pre- and during proceedings behaviour, reasonableness of raising issues, manner of application, exaggeration, and compliance with rules (COPR 19.5(2)(a-e)).
Court of Protection Rules 2017 (COPR) 19.5(2)(a-e)
Each case is considered on its merits; no requirement of bad faith or exceptional circumstances for departure from the general rule, although bad faith may justify indemnity costs.
Hillingdon v Neary [2011] EWCOP 3522; AH v Hertfordshire Partnership NHS Foundation Trust [2011] 3524 (COP)
Outcomes
Deputy to pay P's costs incurred by the OS from 4 July 2023, including the hearing.
Deputy's conduct, including fundamental misunderstanding of PD9E and unreasonable pursuit of meritless arguments, justified departure from the general cost rule.