Gavin Littaur v Alistair Collett & Ors
[2023] EWHC 2225 (Ch)
Herman Baryohai Benjamin v Raymond Ephraim Benjamin & Anor
9 February 2024
[2024] EWHC 215 (Ch)
High Court
A son sued his parents (trustees) for information about a family trust. The parents were slow to respond, so the son sued. He then dropped the case once he got the information. Even though he dropped the case, the judge made the parents pay his legal fees because they hadn't cooperated. The parents' age and possible lack of mental capacity didn't excuse their behavior, as they didn't prove they lacked capacity when it mattered.
Key Facts
- •Claimant sought disclosure of documents and information about a family trust from his parents (defendants), who were trustees.
- •Defendants initially failed to respond to pre-action correspondence.
- •Claimant issued Part 8 proceedings seeking disclosure.
- •Defendants were subsequently assessed as lacking litigation capacity.
- •Upon appointment of a litigation friend, the requested documents were disclosed.
- •Claimant discontinued the claim and applied for a costs order departing from the default rule in CPR 38.6(1).
- •Claimant's costs were approximately £100,000.
Legal Principles
On discontinuance, the claimant is presumptively liable for the defendant's costs (CPR 38.6(1)). This presumption can be displaced if the claimant demonstrates good reason.
CPR 38.6(1), Brookes v HSBC Bank [2011] EWCA Civ 354, Nelson’s Yard Management Co v Eziefula [2013] EWCA Civ 235
Factors considered in departing from the default rule include unreasonable conduct by the defendant leading to the claim's necessity, and the achievement of the claim's objective.
Nelson’s Yard Management Co v Eziefula [2013] EWCA Civ 235, Ashany v Eco-Bat Technologies Ltd [2018] EWCA Civ 1066, Hewson v Wells [2020] EWHC 2722
In trust proceedings, trustees failing to provide information to a beneficiary may be ordered to pay the beneficiary's costs.
Lewin on Trusts, 20th Edition at [48-061]
A protected party (lacking litigation capacity) must have a litigation friend; steps taken before this appointment are generally ineffective (CPR 21).
CPR 21, Bailey v Warren [2006] EWCA Civ 51
There is no general rule preventing costs orders against protected parties; CPR 46.4 protects them by mandating detailed cost assessment.
CPR 46.4, Barker v Confiance Ltd [2019] EWHC 1401
Outcomes
The default costs rule in CPR 38.6(1) was disapplied.
The defendants' unreasonable failure to engage with pre-action correspondence justified the claimant's commencement of proceedings. The disclosure obtained achieved the claim's objective. The defendants' potential incapacity was not established to pre-date the relevant period.
Defendants ordered to pay claimant's costs.
Costs to be paid on the indemnity basis up to 23 September 2022 and on the standard basis thereafter to 20 January 2023. Costs after 20 January 2023, relating to cost negotiations, also to be paid by defendants on the standard basis.