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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Aslam v Seeley & Anor [2025] EWHC 24 (Ch) (10 January 2025) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2025/24.html Cite as: [2025] EWHC 24 (Ch) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
Fetter Lane, London, EC4A 1NL |
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B e f o r e :
____________________
NASLOOM ASLAM | Claimant |
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| - and - |
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(1) MARIA SEELEY(2) SONAL MADAN |
Defendants |
____________________
The First Defendant appeared in person
Louis Grandjouan (instructed by Taylor Rose MW) for the Second Defendant
Hearing date: 24 October 2024
____________________
VERSION
OF APPROVED JUDGMENT
Crown Copyright ©
This judgment will be handed down remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 4:00pm on Friday 10 January 2025
Master Brightwell :
Seeley
had squarely raised the issue of such costs, I directed the claimant to put forward three proposed replacement independent personal representatives, together with their charging structure and an estimate of the costs required to complete the administration of the estate. In circumstances where there was to be another hearing and where the claimant indicated that she wished to obtain representation, I did not consider it appropriate to determine questions of costs on that occasion.
'Our client has been extremely patient and has given the executor considerable time to deal with the administration, in the hope that things would work out without any application by our client to remove her and incur significant cost. Things were ultimately taken out of our client's hands when the Claimant in this matter decided to make a court application to appoint independent administrators. She made the decision not to take any steps to defend the application as, in herview,
the appointment of independent administrators is the best way to progress this matter and ensure that the property can finally be sold and the estate distributed.'
Seeley
then replied, stating as she had on several previous occasions that the claimant lacked capacity and that any instructions to the claimant's solicitors must have come not from the claimant but from her daughter. In my ruling on 12 January 2024, I had indicated that I was satisfied that the claimant must have capacity because her solicitors had a professional obligation to ensure that this was so. The claimant's solicitors were well aware of the allegation of lack of capacity (as it had been made by Ms
Seeley
on numerous occasions).
Seeley
had forcibly suggested that the claimant lacked capacity, I considered it appropriate at that point to ask Mr Kearney to confirm, for Ms
Seeley's
benefit, that his solicitors were satisfied that their client had capacity. To my consternation, he indicated instead that they had in fact become aware of facts suggesting that she might have lost the capacity to litigate. When asked for a further explanation, Mr Kearney said that he and his solicitors had considered that the lack of capacity should not matter, because all that remained to be dealt with was the identity of the replacement personal representative and costs. He said that he and his solicitor had met with their client before the January 2024 hearing, and were satisfied then that she had capacity. I should also say that Mr Kearney immediately apologised for not having told the court about the concerns regarding his client's capacity.
Aslam
is able to understand, retain and weigh matters relating to the costs which have been incurred in these proceedings. It also (as does Ms Roche's witness statement) discloses matters which show that there were solid grounds as at January 2024 (but not then known to Ms Roche) to suggest that the claimant's litigation capacity may be in doubt. I do not consider it necessary for the purposes of this costs judgment to set out any further detail about the claimant's health.
very
lengthy exhibit,
very
shortly before the hearing, and despite having been on notice of the hearing for some time. The second defendant had filed no evidence in response to the claim and at no stage sought directions permitting reliance on evidence for the purposes of costs. Not least as the second defendant strongly opposed an adjournment (as did the claimant), I did not consider it appropriate to permit the second defendant to rely on her solicitor's witness statement. As Ms
Seeley
indicated that she had experienced difficulty in reading the bundle and that she had found a solicitor who could assist her in doing so, I gave her permission to file and serve further written submissions after the hearing, in response to the submissions of the other parties, provided they be filed by 14 November 2024.
Seeley
applied for, and I granted, an extension of time to 18 December 2024 when she filed further comments in the form of five separate emails which did not appear to have been prepared with the assistance of a legal representative. Ms
Seeley
also filed four emails on 4 December 2024, two of which attached
voice
recordings on which there was no permission to rely. I have not considered these recordings. The other parties indicated that they did not wish to respond further. I comment further below on what Ms
Seeley
has said.
The parties' positions
Seeley's
conduct. Ms
Seeley
had been aggressive to and had bullied the claimant, meaning that she was no longer prepared to act as an executor, despite this being a straightforward estate to administer. The evidence also suggests that she inappropriately interfered with the sale of the property and at times withheld the keys from the claimant. Mr Grandjouan also submitted that Ms
Seeley
should have consented to the claim, instead of contending that she should be appointed personal representative herself, and the costs would have been reduced if she had done so. He also suggested that Ms
Seeley's
correspondence raised irrelevant matters; even where no response was sent, the emails had to be considered by the claimant's solicitors.
Seeley's
position. She has not filed any evidence in these proceedings, but filed an acknowledgment of service which I gave her permission to rely on at the first hearing of the claim, even though it had not yet then been served. As she did at the previous hearing, she expanded on the points made in that acknowledgment of service with some considerable energy. I have also taken account of what she has said in the nine separate emails filed on 4 and 18 December 2024. These largely repeated points which had been made by her before.
Seeley
initially seems to have had a good relationship with the claimant, whom she has described as a friend (and also as being, in her words, 'like my mum'), and also with Duncan Lewis solicitors, who were appointed to advise in the administration of the estate. Ms
Seeley
asserts that she herself made that instruction on the claimant's behalf. This good relationship seems to have dissipated once the fee earner initially instructed had left the firm, and issues arose about the marketing of the property. It is Ms
Seeley's
position that she, and not the claimant or Duncan Lewis, supervised and/or arranged works of repair at the property so that it could be marketed. As she considers that she alone has done work for the benefit of the estate, she does not believe the costs incurred by the claimant in instructing Duncan Lewis, at least latterly, to have been properly incurred.
Seeley's
position from the start of the proceedings that the claimant lacked capacity and that she was incapable of giving instructions to her solicitors, those instructions coming instead from the claimant's daughter. Ms
Seeley
has repeatedly asserted that Ms Roche has lied about this, and has continued to make serious allegations about her. She plainly also considers that Duncan Lewis have overcharged for the work they have carried out. She also considers that Ms Roche acted behind her back, to some extent because in the early stages she had direct contact with the firm and it appears was given a fee quote which has clearly (and in my
view
understandably) been significantly exceeded. I repeat that I am concerned only with the costs of these proceedings and not with the prior costs of administration. Duncan Lewis's client for the purposes of these proceedings has been the claimant.
Seeley,
at the previous two hearings. She additionally raised some new points about the claimant and her family situation at the costs hearing. As the claimant had no opportunity to respond to them in evidence, I have not taken them into account but, in any event, they add nothing to the allegation already made that the claimant was not in fact providing instructions to her own solicitors. I do not consider that Ms
Seeley's
allegations against Duncan Lewis of impropriety and dishonesty have been substantiated.
Relevant principles
v
Saundry [2019] EWCA Civ 2261, which also in part concerned a claim for the removal of a personal representative, at [19]–[23]:
'19. …. The general proposition in relation to reimbursement of a trustee from the trust fund is now to be found in section 31(1) of the Trustee Act 2000. It provides as follows:
"(1) A trustee—
(a) is entitled to be reimbursed from the trust funds, or
(b) may pay out of the trust funds,
expenses properly incurred by him when acting on behalf of the trust."
Mr Learmonth also took us to the predecessor of section 31(1), section 30(2) of the Trustee Act 1925. That was in a slightly different form. It provided:
"A trustee may reimburse himself or pay or discharge out of the trust premises all expenses incurred in or about the execution of the trusts or powers."
20. In relation to the costs of proceedings in which a trustee is or has been involved, there are specific provisions in the CPR. CPR 46.3 is concerned with the powers of the court to award costs in favour of trustees or personal representatives. It applies where a person is or has been a party to any proceedings in either of those capacities and costs are not payable under a contract to which CPR 44.5 applies. The general rule is that such a person:
"(2) . . . is entitled to be paid the costs of those proceedings, insofar as they are not recovered from or paid by any other person, out of the relevant trust fund or estate."
Those costs will be assessed on the indemnity basis: CPR 46.3(3). The Rule is supplemented by 46PD.1 which provides as follows:
"1.1 A trustee or personal representative is entitled to an indemnity out of the relevant trust fund or estate for costs properly incurred. Whether costs were properly incurred depends on all the circumstances of the case including whether the trustee or personal representative ("the trustee")—
(a) obtained directions from the court before bringing or defending the proceedings;
(b) acted in the interests of the fund or estate or in substance for a benefit other than that of the estate, including the trustee's own; and
(c) acted in some way unreasonably in bringing or defending, or in the conduct of, the proceedings.
1.2 The trustee is not to be taken to have acted for a benefit other than that of the fund by reason only that the trustee has defended a claim in which relief is sought against the trustee personally."
21. The relevant Supreme Court Rules which preceded CPR 44.6 were also in a slightly different form. Order 62, r 6 which was headed "Cases where costs do not follow the event" provided (in its 1994 form, at least) where relevant, as follows:
"Where a person is or has been a party to any proceedings in the capacity of trustee . . . he shall be entitled to the costs of those proceedings, in so far as they are not recovered from or paid by any other person, out of the fund held by him in that capacity . . . and the court may order otherwise only on the ground that he has acted unreasonably or, in the case of a trustee . . . has in substance acted for his own benefit rather than for the benefit of the fund."
22. It was common ground that the source of the right to an indemnity is to be found in section 31(1) of the Trustee Act 2000 and that the provisions of the CPR can only be a commentary upon and complementary to that section. That must be right and must also have been the case in relation to section 30(2) of the 1925 Act and Order 62 r 6 of the Supreme Court Rules. There was some discussion as to whether section 31(1) had changed the law and that the earlier case law should be seen in that light. It seems to me that that was not the effect of section 31(1) of the Trustee Act 2000. On the contrary, it seems to me that it was an attempt to codify the law as it stood.
23. Although many more trustees are remunerated as a result of express provisions in the trust deed than inVictorian
times and in the early twentieth century, the policy behind the availability of an indemnity has not changed. It is designed to ensure that the trustee is not out of pocket when acting in his capacity as trustee on behalf of the trust and that the trust is efficiently and properly administered. Nothing has changed. The right to an indemnity is part of the fabric of the relationship between the settlor, the trustees and the beneficiaries: see Turner
v
Hancock (1882) 20 Ch D 303 per Jessel, MR at 305.'
v
Patience [2019] EWHC 1231 (Ch) at [17], where he said this:
'17. I cannot deprive executors of their indemnity out of the estate for costs or other expenses or liabilities which they have incurred for the estate unless they have incurred them improperly. This in summary form is the effect of section 31 of the Trustee Act 2000 (applied to executors by section 35) and CPR Part 46 Practice Direction, paragraph 1, acting as an exception to the general rule in CPR rule 46.3. In the caselaw before the CPR and the 2000 Act it was sometimes put (and is still sometimes put) in the form, had the executors or trustees behaved unreasonably, or committed misconduct? But I do not think thevariation
in words makes any difference in substance.'
v
Astor [2013] EWHC 1857 (Ch). That was a complex application for directions by the administrator of an estate. Roth J set out the three categories of trust litigation as derived from Re Buckton [1907] 2 Ch 406. The starting point where costs are necessarily incurred for the benefit of the estate, whether the claim is issued by a personal representative or by a beneficiary, is that they be paid out of the estate. As far as the costs of the claimant personal representative are concerned, that is consistent with modern principle, as summarised in Price
v
Saundry, even though the Buckton principles were established with conventional trustee directions applications in mind.
Seeley,
might be seen to be an obvious case of such a claim issued for the benefit of the estate. Where proceedings are hostile, on the other hand, costs will normally be determined only in accordance with the general principles applicable to costs in civil proceedings, i.e. pursuant to CPR r 44.2.
v
Astor at [54], to the submission of the administrator in that case that her costs should be paid by a beneficiary personally, because of his conduct:
'54. Mr Ham responded that a beneficiary has no duty to consent to action proposed by an administrator, or indeed to be polite. That is no doubt correct, but equally, in my judgment, a beneficiary cannot expect to be immune from liability in costs irrespective of his conduct. An order of costs is not to be applied as a sanction for the intemperate and frequently insulting language of Mr Astor's correspondence. But in myview,
where unreasonable conduct by a beneficiary is responsible for generating substantial costs on the part of a trustee or personal representative as regards an application to the court, it is appropriate that the burden of those costs should be borne by that beneficiary and not fall on the trust or estate and thus the beneficiaries as a whole.'
'55. Mr Astor evidently lost all confidence in Mrs Green as administrator and wished to be in a position where he had before him all the information available to Mrs Green so that he could, in effect,verify
all the steps she took in administration of the estate. I have quoted above relatively short extracts from some of the
very
many emails which Mr Astor sent to Mrs Green. It is his conduct, alone among the beneficiaries, which has led Mrs Green to seek the approval of the court to the Partition Agreement on which she had favourable advice from a Swiss lawyer, which advice she shared with the beneficiaries, and to which the other beneficiaries consented. Further, I consider that it is the conduct of Mr Astor in the litigation which has done much to escalate the costs until, in the light of the agreement "brokered" by Peter Smith J on 2 May 2013, Mr Astor made clear by his counsel for the first time at the opening of the trial that, subject to the question of the power under Swiss law, he was not opposing Mrs Green's exercise of her discretion in entering into the Partition Agreement.
56. Although in form an application that comes within category (1) of Buckton, I do not think it falls neatly within Kekewich J's tripartite classification. It has far more the character of hostile litigation, in which the other individual beneficiaries support the position of the personal representative, who has faced sustained hostility and opposition from the one beneficiary who has opposed this claim. Having regard to the overall justice of the case, I do not regard this as one where the costs should fall on the estate, and thus be at the expense of all the beneficiaries. The appropriate order, in my judgment, is that the costs referable to the second head of relief should be paid by Mr Astor.'
v
Metcalfe [2012] EWHC 125 (Ch) at [20]) and at [56], not all cases neatly fit within the Buckton categories.
Discussion
The claimant's costs
v
Patience, discussed above).
Seeley
interfering in the sale process in relation to the property, and aggressively and angrily challenging the actions of both the claimant and her solicitors. That is all consistent with what Ms
Seeley
has written in correspondence during the course of these proceedings, which is in the hearing bundle, and with what she has said in court. While her behaviour in court has been polite, Ms
Seeley
has tended to become somewhat impassioned when discussing her complaints, at times showing signs of anger. Her complaints are also to some extent incoherent. This all tends to support what is said by the claimant in her witness statement.
Seeley's
complaints about the claimant, or about Duncan Lewis, are essentially in relation to the period before the claim was issued. I have summarised those points above. Ms
Seeley
accepted during the hearing that she had withheld the key to the property from the claimant and had instructed the estate agents to take the property off the market without consent. She accepted that had been a mistake. These matters, in my
view,
largely concern her complaint about costs incurred before the proceedings started and not the costs of the claim. Those earlier costs are not before me for consideration (although I would comment that I have seen and heard nothing to suggest that Ms
Seeley's
complaints are well founded).
Seeley
has put forward no coherent reason why the commencement of the claim by the claimant was unreasonable. She suggested that the claimant had signed a document renouncing probate but, as she had a grant in her favour, this could have been of no effect.
Seeley
was unrepresented and indicated that she wanted to obtain representation for that purpose. The hearing had also overrun its short hearing time. The other costs incurred by the claimant, in obtaining details of alternative personal representatives had to be incurred in any event.
view
that the appropriate starting point is in principle to allow to the claimant from the estate the sum sought in the schedule of costs filed in advance of the June 2024 hearing (around £23,300). Whilst it was the costs of that hearing which were thrown away, the final costs hearing was of a similar length, and Mr Kearney's brief fee (of £2,500) was the same. Furthermore, the costs incurred in the preparation of Ms Roche's witness statement explaining her understanding of the claimant's capacity were incurred after the June 2024 hearing, and directly result from what I consider to be unreasonable conduct.
VAT.
Ms
Seeley
objected to any costs being met from the estate but did not make any more particularised objections. Save for that element disallowed above, I do not consider that the costs can be shown to be unreasonably incurred or unreasonable in amount and any doubt would fall to be resolved in favour of the claimant as receiving party.
The second defendant's costs
Seeley,
by their being paid out of Ms
Seeley's
share of the estate as it is administered. With reference to the discussion of Green
v
Astor, above, I consider that there are two material questions: were the proceedings necessitated only by the conduct of the first defendant, and has the conduct of the first defendant escalated the costs incurred in such a way that a costs order ought to be made against her?
Seeley's
conduct before the claim was brought but, on the assumption that those complaints are well founded, they do not show that the entire proceedings were unnecessary. Indeed, her position appears to have been that she would commence proceedings herself if the claimant did not do so, it being obvious that the administration of the estate was not proceeding. The fact that the claimant did so obviated the need for the second defendant to incur those costs. Criticism might also be made of the claimant in not acting sooner to deal with the impasse in administration, but that cannot be a reason to subject the first defendant to a personal costs order.
Seeley.
From the perspective of the second defendant, however, the litigation costs she incurred in relation to the hearings in January and June 2024 were necessarily limited. She did not attend either hearing, and her involvement was limited to instructing her solicitors to write a sensible letter, indicating that she did not intend to be represented at the hearing, and seeking the appointment of a new personal representative and the conclusion of the proceedings as expeditiously as possible. The need for, and cost incurred in writing, such letters was not caused by the conduct of the first defendant.
Seeley's
unreasonable conduct. The second hearing was also adjourned for reasons which were not unreasonable conduct on Ms
Seeley's
part. The costs then incurred by the claimant in pursuing and justifying her claim to costs were also necessarily and reasonably incurred, save to the extent that they have been disallowed, and again not caused by Ms
Seeley's
conduct.
very
relevant that this hearing was needed only because of the adjournment of the previous hearing, which adjournment was the responsibility of the claimant and not of the first defendant. If it had not been for that adjournment, the claim would have been concluded at the second hearing, at which the second defendant was not represented. Even though her solicitors wrote to the court before the hearing, no costs schedule was filed. The second defendant's real participation in the proceedings thus began after the point at which it would have concluded were it not for the issue of the claimant's capacity arising in the way that it did.
Seeley.
They were incurred by the second defendant acting in response to the unanticipated adjournment and belatedly putting in a claim for costs.
v
Astor at [54] are apposite. He there said that a costs order was not to be made as a sanction for intemperate and insulting language, but where unreasonable conduct generates substantial costs. Some of what Ms
Seeley
has said has certainly been insulting, but those insults have been aimed at the claimant's solicitors and not at the second defendant or her solicitors. I agree that the other parties have had to read what Ms
Seeley
has said, but I consider that it must have been apparent to the second defendant all along that no substantive response from her would be required.
VAT
to be a reasonable sum for the instruction of solicitors and for the correspondence undertaken both before and after the start of the proceedings.
Conclusion
VAT.
Seeley
asked me not to complete this judgment, but to allow her a further opportunity to obtain representation and to put in evidence. Following the circulation of the draft judgment, she has sent five further emails to the court to similar effect. I am satisfied that Ms
Seeley has had every opportunity to obtain representation and to respond to the costs claims against her and against the estate. The other parties are entitled to the conclusion of these proceedings and there are no grounds to justify delaying this decision any further.