Reeves v Drew & ors (costs) [2022] WTLR 1549

Analysis

In the main action, the claimant sought to prove a purported will dated 2014. The second and fourth defendants challenged the validity of the will on the grounds first of lack of knowledge and approval and secondly, by a late amendment, of undue influence. That amendment required a substantial amount of further evidence to be filed. In a judgment following trial ([2022] EWHC 159 (Ch), available in the WTLR web reports as WTLR(w) 2022-08) the judge found the 2014 will to be invalid for want of knowledge and approval, but dismissed the claim that it was procured by undue influence. The judge made extensive findings of dishonesty against the claimant, and that she had actively procured the execution of the contested will in the knowledge that the testator did not know and approve its terms.

The second and fourth defendants sought their costs on the indemnity basis, on the ground that the 2014 will had been declared invalid and they were the successful party, and no issue-based costs order should be made where the result was essentially binary. They sought indemnity costs on the following grounds:

1. (i) the claimant’s alleged dishonest conduct;
2. (ii) the fact that the claim was irreconcilable with the contemporaneous documents; and
3. (iii) the claimant’s consistent refusal to engage in ADR.

The claimant sought her costs of the undue influence claim which had failed, with the remaining costs to be paid out of the estate, on the ground that the testator’s lack of knowledge and approval was the fault of the solicitors who prepared the will, or the testator’s fault for not informing them of his illiteracy.

The first defendant executor sought his costs from the estate, having remained neutral. This was challenged by the other defendants.

The issues to be determined were:

1. (1) What costs order should be made in the main action?
2. (2) What basis of assessment should be adopted?
3. (3) What order should be made in respect of the executor’s costs?

Held:

1. (1) The claimant would be ordered to pay 70% of the second and fourth defendants’ costs. The defendants were the successful parties for the purpose of CPR 44.2. Challenges on the basis of knowledge and approval and undue influence are inherently contradictory; they cannot both be correct. The amendment to plead undue influence enabled the defendants to put in broader evidence as to the claimant’s character which assisted their plea of lack of knowledge and approval; it was reasonable for the argument to be run. However, the failed plea of undue influence could not be ignored (paras [18]-[20]).
2. (2) The claimant’s argument that her loss on knowledge and approval was attributable to failures by the testator or his solicitors was wholly unrealistic, and ignored factual findings of her involvement in the execution of the will. She forced the defendants to challenge the will in court, and although the undue influence challenge was unsuccessful, that was better reflected in a proportionate reduction in the defendants’ costs than any order in favour of the claimant (paras [23]-[24]).
3. (3) Those costs should be assessed on the indemnity basis. The claimant propounded a will she knew to be false, which is conduct outside the norm. Findings of dishonesty and fraud were made against her. Her refusal to engage in ADR was unreasonable, given the defendants’ extensive efforts to achieve resolution by consent (paras [26]-[27]).
4. (4) The fourth defendant was entitled to have separate leading counsel; there were slightly different points which it was appropriate for them to emphasise and he brought an alternative perspective to events (para [28]).
5. (5) The executor’s administrative costs would be paid by the claimant on the indemnity basis, with all other costs paid by the claimant on the standard basis, with no indemnity from the estate for the balance. The executor had not remained neutral but aligned himself with the claimant. His evidence at trial was disbelieved, and he had not given a candid account to the court (paras [31]-[34]).

JUDGMENT MR JUSTICE MICHAEL GREEN: [1] I handed down judgment in this matter on 31 January 2022, following the trial which took place in November 2021. My long judgment has neutral citation number [2022] EWHC 159 (Ch). I will adopt the same abbreviations and definitions as in that judgment, and again no disrespect is intended …

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