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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Perrins v Holland & Ors  EWCA Civ 1398 (08 December 2010)
Cite as:  EWCA Civ 1398
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
Mr Justice Lewison
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
LORD JUSTICE JACKSON
| DAVID ROBERT PERRINS
|- and -
|RICHARD PHILIP HOLLAND
SHARON RUTH MOORE
(as Executors of the Estate of Robert Perrins deceased)
(3) ANNE DOONEY
MR ANDREW CHARMAN (instructed by Sydney Mitchell Solicitors, Birmingham) for the 1st and 2nd Respondents
MR A BURDEN (instructed by Williamson & Soden Solicitors) for the 3rd Respondent
Crown Copyright ©
The Chancellor :
"1. Pursuant to the Order of HHJ Purle QC of 15 September 2008 the solicitors to the Claimant shall pay the costs of the Defendants of and occasioned by the adjournment of that date assessed if not agreed on the standard basis.
2. The Claimant (a party who was in receipt of services funded by the Legal Services Commission) shall pay such sum as is reasonable in respect of the costs of the Third Defendant pursuant to section 11 Access to Justice Act 1999, such amount to be determined by a Costs Judge.
3. There be a detailed assessment of the costs of the Claimant which are payable out of the Community Legal Service Fund.
4. The First and Second Defendants shall recover their costs of the action from the estate of the Deceased, to be assessed on the indemnity basis, if not agreed by the Third Defendant, including such costs relating to the adjournment on 15 September 2008 as they do not recover from the solicitors for the Claimant under paragraph 1 above."
"a. Having found rightly that this was a case where the circumstances were such that the matter required investigation and therefore there should be no order as to costs he was wrong to hold that a very low offer made by the Third Defendant to settle the matter when she had not made full disclosure to the Claimant should result in the Claimant being ordered to pay the costs;
b. He failed to deal with the issue which arose on a hearing before HHJ Purle QC on 15 September 2008 as to whether it was right that the Claimant should pay two set of costs on his application for an adjournment where the First and Second Defendants and the Third Defendant were respectively represented by separate legal teams."
"There remains for further argument the appeal from the order of Lewison J in respect of the costs of the proceedings before him. They were not considered at the earlier hearing of the appeal so that the executors should not incur costs of appearing on those grounds which were of no concern to them. Given that we shall now have to deal with the costs of this appeal in addition I would urge the parties to consider whether it is right to incur yet further costs in contesting the costs order made by Lewison J. The wreck of the Testator's estate is already total, there can be nothing left in it for anyone."
In addition to the concern there expressed it is remarkable that there is no evidence that the enquiry directed by paragraph 2 of the costs order has taken place nor any indication that, if it had, David would be likely to be ordered to pay any amount towards Anne's costs of the action. In those circumstances it would be open to this court to dismiss this part of the appeal as academic.
"What, in my judgment, really caused the litigation was David's refusal to understand or acknowledge the character or depth of the relationship between his father and Anne. The family disapproved of Robert's choice of Anne and were suspicious of her motives. Robert was aware of their disapproval, yet stuck to his guns. It was the fact that Robert left his only valuable asset to Anne that was, in my judgment, the trigger for the litigation. The cause was not, therefore, either Robert's mental capacity or Mr Ferguson's conduct."
"More cogent, to my mind, is the argument that the second established exception applies. This, it will be recalled, is that if the circumstances lead reasonably to an investigation of the matter, then the costs may be left to be borne by those who have incurred them (i.e. there should be no order for costs as between the contending parties). Although Henderson J noted in Kostic v Chaplin that recent cases had narrowed the scope of the first established exception, he made no similar remark in relation to the second. There is, I think, still a public interest that where reasonable suspicions are raised about the validity of wills they should be proved in solemn form. [Counsel for David] submits that David had to come to court "if the evidential fog and suspicion surrounding the state of the testator's mind and health and his execution of the will were to be lifted". The evidential fog cannot but recall the opening of Bleak House; just as the exhaustion of the estate in legal costs cannot but recall its ending. Nevertheless, despite its colourful language, there is a real point here. In my judgment the circumstances of Robert's disability coupled with the information given to David did raise a reasonable suspicion about the validity of the will. In my judgment, therefore, there was justification for an investigation of the matter. All other things being equal, this would have led me to order that costs should lie where they fall as between David and the other parties."
"18...The latter claim was not before me. The offer of settlement was a payment of £10,000 by Anne with no order for costs. The costs incurred by the estate and by Anne at that time stood at £12,000; and the estate's solicitors predicted (rightly as it turned out) that if the dispute went to trial it was likely that the costs of all the parties could exceed the sums available in the estate. Although I cannot of course form a concluded view about David's Inheritance Act claim the fact is that he is a healthy young man who, at least at the trial date, was in employment. Successful claims under the Act in those circumstances are rare. Although I have said that there is, in my judgment, a public interest that where reasonable suspicions about the validity of a will are raised, it should be proved in solemn form, that public interest cannot justify the potential exhaustion of the estate in legal costs. Even in the case of a contested probate action there is also a public interest in encouraging sensible settlements. In my judgment, the making of that offer was a reasonable offer, and one which David ought to have accepted. At that time Anne was not a party to the litigation. She became a party on her own application (opposed by David) on 28 November 2005.
19. The offer was not, however, in a form that complied with CPR Part 36 since it contained its own terms about costs. I do not, therefore, consider that it would be right for an offer in that form to attract the costs consequences that would attach to an offer which did comply with Part 36. However, in the light of that offer, I consider that David should in principle pay Anne's costs on the standard basis from the date of her joinder as a party.
20. David has however been in receipt of funding from the Legal Services Commission. So any costs order made against him is likely to be of academic interest only. But I am not in a position to determine how much it is reasonable for him to pay. That will have to be decided by a costs judge. The only finding of fact that I make which may be relevant to that determination is that in my judgment it was unreasonable for David to have refused the offer made to him on 8 August 2005."
"Even in the case of a contested probate action there is also a public interest in encouraging sensible settlements."
is wrong in law because it involves rewriting the observation of Sir James Wilde in Mitchell & Mitchell v Gard & Kingswell (1863) 3 Sw & Tr 75 that
"...doubtful wills should not pass easily into proof by reason of the cost of proving them."
Lord Justice Moore-Bick:
Lord Justice Jackson: