John Duncan Grierson v Robert James Grierson
[2024] EWHC 3048 (Ch)
Jonathan Henry Leonard & Ors v Margaret Rose Leonard & Ors
29 April 2024
[2024] EWHC 979 (Ch)
High Court
Two families fought over a will in court. One side won. Now they're fighting over who pays the legal bills. The judge decided most of the costs should be paid by the losing side, because they didn't seriously try to settle the case early. There was some debate about specific parts of the case and how to fairly divide the costs, but the main decision is that the losing side has to pay most of the legal fees.
Key Facts
- •Dispute over costs in a probate case following a main judgment ([2024] EWHC 321 (Ch)) where the Claimants succeeded in establishing the validity of the 2007 Will and invalidity of the 2015 Will.
- •Claimants sought costs based on a successful Part 36 offer, while Defendants argued against indemnity costs and raised common law probate exceptions to the general rule of costs following the event.
- •Separate dispute over costs related to a dismissed claim concerning two gifts made by the deceased (the Gifts Dispute).
- •Defendants argued the Part 36 offer was not a genuine attempt to settle, and that the Claimants' pursuit of the Gifts Dispute was abusive.
Legal Principles
General rule: Costs follow the event (CPR 44.2(2)(a)), but the court may make a different order (CPR 44.2(2)(b)).
CPR 44.2
Common law exceptions in probate cases: (i) litigation caused by testator; costs from estate; (ii) reasonable investigation justified; no order as to costs.
Kostic v Chaplin [2007] EWHC 2909 (Ch); Perrins v Holland [2009] EWHC 2556 (Ch); Spiers v English [1907] P 122
Part 36 Offer consequences: If judgment at least as advantageous as the offer, indemnity costs etc. apply unless unjust (CPR 36.17).
CPR 36.17
Test for 'unjust' under CPR 36.17: considers all circumstances, including genuineness of the offer.
CPR 36.17(5)(e)
Outcomes
Defendants to pay Claimants' costs of the Gifts Dispute on the standard basis.
Agreed by the parties.
No order as to costs up to and including the mediation (10 March 2021) for the Probate Dispute.
Second common law exception applied; reasonable investigation justified until mediation.
Defendants to pay Claimants' standard costs from 11 March 2021 to 4 October 2021 for the Probate Dispute.
First common law exception not applicable; costs follow the event.
Defendants subject to Part 36.17(4) costs consequences from 5 October 2021 onwards for the Probate Dispute.
Part 36 offer was a genuine attempt to settle; Defendants failed to show injustice.
Issue-based costs order for the overall costs apportionment between the Probate and Gifts Disputes.
Impractical to use percentage-based order due to evidence limitations and significant overlap between the two disputes.
Interim payment on account of costs to Claimants by Defendants.
Agreed by the parties; 90% for budgeted costs and 70% for non-budgeted costs.