Key Issue: Substitution of Party and Allocation of Costs in Derivative Claim Litigation

Citation: [2024] EWHC 522 (Ch)
Judgment on


In the case of Helen Mary Ross v Andrew John Phillips & Ors [2024] EWHC 522 (Ch), various legal principles were explored in the context of a derivative claim within the property, trusts, and probate domain. This article will analyze the decision rendered by Jonathan Hilliard KC, sitting as a Deputy Judge of the High Court, focusing on the key points of substitution of a party, permission for derivative claims, and rulings on cost orders within the litigation process.

Key Facts

The case involves an application for orders related to a derivative claim made by the Claimant, Helen Mary Ross, regarding properties previously owned, or alleged to be owned, by the Defendants. Two properties, whose claims are central to this case, were transferred to Bond 58 Homes Limited, prompting the Claimant to seek substitution of Bond 58 Homes Limited for the fifth defendant, Ms. Zoe Jayne Phillips, and to bring derivative claims against this new entity. The application also included requests for a number of associated orders.

The Claimant’s application was primarily agreed upon by the Defendants, except for disagreements on the appropriate orders regarding costs. The matter was handled through an application on paper, where Judge Hilliard was asked to consider the substitution and address the costs disputes.

Several legal principles underpin the case, particularly:

  1. Derivative Claims: The case acknowledges that just as it was previously appropriate to allow derivative claims against Ms. Phillips and Mr. Phillips, the same principles apply to Bond 58 Homes Limited due to its current legal ownership of the relevant properties.

  2. Amendments to Proceedings: The case evaluates the circumstances under which a party is allowed to amend proceedings and the implications on associated costs.

  3. Costs in Litigation: The judgment elucidates the principles concerning who bears the costs of litigation, amendments to claims, the making of applications, and the costs related to discontinuing a claim against a party. It weighs on who should shoulder the costs when a party delays agreement on orders or provides information at a late stage which necessitates the amendments.

  • Judge Hilliard applied these principles to determine the costs allocations, taking into account the conduct of the Defendant (Mr. Phillips) in delaying the communication about the true ownership of the properties and thereby contributing to the need for procedural amendments.


The Judge made the following key orders:

  • Substitution of Bond 58 Homes Limited: The Court approved the substitution of Bond 58 Homes Limited for Ms. Zoe Jayne Phillips for the Relevant Claims, aligning with the principles of a derivative claim.

  • Cost Orders:

    • Costs resulting from the amendment to the Particulars of Claim required by a previous order were already dealt with and were not reopened.
    • The costs of making the current application were ordered to be paid by Mr. Phillips, due to delays on his part and insufficient explanations.
    • Costs related to future amendments concerning the addition of Bond 58 Homes Limited to the proceedings were ordered to be reserved for determination at trial.
    • Costs concerning the discontinuance of claims against Ms. Phillips were also reserved for the trial judge to decide.

These decisions were based on a consideration between the parties’ conduct in the litigation process and the potential merit of the claims to be assessed at trial.


In the judgment of Helen Mary Ross v Andrew John Phillips & Ors [2024] EWHC 522 (Ch), Deputy Judge Jonathan Hilliard KC addressed critical issues surrounding the amendment of claims in a derivative action, substitution of parties, and resolution of disputes regarding costs. The judgment highlights the need for parties to communicate promptly and effectively to prevent unnecessary litigation costs and procedural delays. The application of legal principles relating to derivative claims and cost orders was tailored to the specifics of the case, illustrating the judiciary’s careful balancing of parties’ actions and the larger interests of justice. The reserved costs orders reflect a judicial approach that leaves room for final determination based on the full context revealed at trial, signifying the adaptability of the legal system when grappling with the complexities of property and trust law litigation.