Peter Ian Brealey v Shepherd & Co Solicitors
[2024] EWCA Civ 303
Shepherd & Co Solicitors v Peter Ian Brealey
19 December 2022
[2022] EWHC 3229 (KB)
High Court
A solicitor acted as executor in a will without a clause stating he'd get paid. He tried to get paid from the estate, but the court said he needed written agreement from the other executors or exceptional reasons, which weren't present. The solicitor's firm lost the appeal.
Key Facts
- •Appeal against Master Rowley's judgment (29 November 2021) in third-party assessment proceedings under section 71(3) of the Solicitors Act 1974.
- •Respondent, a beneficiary, challenged fees levied by Appellant (Shepherd & Co) for work done by name-partner Mr. Shepherd as executor of his mother's estate.
- •Respondent accepted fees for day-to-day administration but disputed executor fees due to lack of charging clause in the will.
- •Master Rowley applied the 'blue-pencil' test from Tim Martin Interiors v Akin Gump LLP [2011] EWCA Civ 1574, limiting challenges to costs outside the retainer or allowable only under a 'special arrangement'.
- •The will appointed three executors: Mr. Hayward, Mr. Shepherd, and another Shepherd & Co partner (Mr. Smyth).
- •The will lacked a charging clause for executor fees.
- •Mr. Smyth played no role in estate administration.
- •Appellant argued for fees under section 29 of the Trustee Act 2000 (written agreement of other trustees) and the court's inherent jurisdiction (Boardman jurisdiction).
Legal Principles
Third-party assessment under section 71(3) of the Solicitors Act 1974 allows challenges to costs outside the retainer or allowable only under a 'special arrangement'.
Tim Martin Interiors v Akin Gump LLP [2011] EWCA Civ 1574
A trustee acting in a professional capacity is entitled to remuneration if each other trustee agrees in writing.
Trustee Act 2000, section 29
Court's inherent jurisdiction (Boardman jurisdiction) allows for trustee remuneration in equitable circumstances, but it should be exercised sparingly and in exceptional circumstances.
Boardman v Phipps [1967] 2 AC 46; Re Worthington [1954] 1 WLR 526; Gavriel & Anor v Davis [2019] EWHC 2446 (Ch)
An executor derives title from the will; acceptance of the office is presumed unless formally renounced.
Goodman v Goodman [2014] Ch 186; Administration of Estates Act 1925, section 5
Outcomes
Appeal dismissed.
Appellant failed to demonstrate entitlement to fees under section 29 of the Trustee Act 2000 due to Mr. Smyth's executor status and lack of written agreement; insufficient evidence to justify exercise of the court's inherent jurisdiction under Boardman.
Witness statements from Mr. Smyth admitted; Mr. Hayward's statement excluded.
Mr. Smyth's statement met the Ladd v Marshall test; Mr. Hayward's statement did not meet the reasonable diligence criterion.
Ground 4 (new point about profit vs. cost) dismissed.
New point raised on appeal required new evidence and would have altered trial proceedings; not a good point because the fees weren't Mr. Shepherd's expenses but the firm's.