A reminder on costs in the context of probate litigation and the importance of mediation

5 September 2019

The most recent decision in the case of Christopher Burgess v Jennifer Penny & anr [2019] EWHC 2034 (Ch) serves as a useful reminder that the principles applicable to costs in the context of probate litigation are different from the costs of other litigation and the importance of mediation.
The substantive judgment concerned the much publicised dispute between three siblings in relation to the distribution of the estate of their late mother, Freda Burgess. The two sisters, Jennifer Penny and Catherine Kennard alleged that their mother did not have knowledge and approval of the contents of a Will executed in January 2013 bequeathing her circa £1.5 million estate equally between her three children. At the time, the press made much of the fact that during the proceedings significant emphasis was placed by the sisters on the fact that their brother, Christopher Burgess, was richer than they were. The court found the will to be valid and consequently that the estate should be split equally in accordance with Freda’s wishes.
In making her judgment in relation to how the costs of the litigation should be dealt with, Mrs Catherine Newman QC sitting as a Deputy High Court Judge adopted the starting position that costs were at her discretion highlighting the applicable paragraphs of the CPR:


1. The court has discretion as to:
a. whether costs are payable by one party to another;
b. the amount of those costs; and
c. when they are to be paid.

2. If the court decides to make an order about costs:

a. the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
b. the court may make a different order.
Of the three main issues at trial, Christopher Burgess had been successful in relation to two of the issues. It was however also noted that the third issue in relation to which Mr Burgess had lost would have contributed to a significant part of the trial preparation and the evidence. In the first instance the judge thus concluded that the starting position in relation to costs be that the sisters should pay half of their brother’s costs and Mr Burgess should pay half of his sisters’ costs (to be subject to detailed assessment if not agreed).
The judge then turned her mind to those rules specific to contentious probate cases, as derived from Spiers v English [1907] and more recently summarised in the case of Kostic v Chaplin [2008] as follows:
  1. the court may order the unsuccessful party’s costs to be paid out of the estate if the litigation has been caused by the testator.
  2. if the circumstances lead reasonably to an investigation of the matter, then the court may make no order as to costs.
The judge turned to the judgment of Mr Justice Henderson in the Kostic case to derive the following additional principles from the earlier authorities referred to therein by way of further guidance:
a. Do the facts warrant an order different from that which would be made if costs simply followed the event?
b. Does one or other of the losing parties deserve to be relieved from being chargeable with costs because they did nothing more than fail in a suit which was justified by good and sufficient grounds for doubt?
c. Were one or more of the parties led reasonably to the bona fide belief that there were good grounds for impeaching the will?
d. Would departing from the general rule encourage fruitless litigation spurred on by a belief that all of the costs will come out of the estate? The courts are increasingly alert to the dangers or encouraging litigation and discouraging settlement of doubtful claims if costs are allowed out of the estate to the unsuccessful party.
e. Less importance is attached today than in the 19th Century to the independent duty to the Court to investigate the circumstances in which a will was executed and satisfy itself as to its validity.
In this case whilst there was clearly uncertainty as to whether the will had been “done properly” in circumstances whereby the sisters had confirmed that they were both content with equal division as a matter of principle High Court litigation to challenge the will was “not obviously reasonable”. 
The judge went on to highlight the unreasonableness of the sisters complete refusal to mediate on the basis that they wanted an admission from their brother that what he had done was wrong and did not consider that objective would be achieved at mediation. Mrs Catherine Newman QC emphasised that “mediation is not just about one side getting what they want. That is a misconception of the purpose of mediation. Mediation should be about attempting to reach a solution which both parties can live with as better alternative to litigation”. 
Taking all factors into consideration the conclusion reached by the judge was that initial enquiries concerning the circumstances surrounding the 2013 will was reasonable but the onward conduct of the litigation and refusal to mediate was not. The appropriate order in this case was that the parties should bear their own costs.

About the author

Katherine Pymont is a Senior Associate in the Dispute Resolution team. She has a broad spectrum of litigation experience with particular expertise in Wills, Trusts and Inheritance Disputes.

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