Analysis
The claimant had been married to the deceased for 11 years. The deceased took her own life on 11 April 2017. The claimant and the first and second defendants, the deceased’s siblings, were appointed executors of the deceased’s 2015 will. Probate was granted in April 2018. The estate was valued at around £130,000.
On 27 August 2019, the claimant was removed as an executor of the 2015 will by the court. The claimant brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975 against the estate of the deceased on 21 November 2019, which was opposed by the first and second defendants. The third and fourth defendants were the adopted children of the claimant and deceased and were represented by their litigation friend.
The claimant had applied for permission for the claim to continue under s4 of the Inheritance Act (see p23). The defendants applied for an order that if the application was granted the claimant should be ordered to make a payment into court and/or not be entitled to recover his success fee under a conditional fee agreement (CFA), and/or obtain after the event (ATE) insurance to cover his prospective costs liability on the basis of conduct issues, and equality of arms.
Held:
- (1) Application dismissed. There appeared no basis under CPR r3.1 to order the claimant to obtain ATE insurance, and such a requirement could not be seen to be reasonable or proportionate or to further the overriding objective. There was no evidence it could be obtained. An order would infringe Art 6 rights.
- (2) The success fee is a matter for the judge at the end of the proceedings. There was no cost budgeting and the success fee would not form part of it. The fact that the success fee may discourage the defendants from being able to settle the claim was not a relevant factor, and there was no visible basis on which such an order could be made. Parliament had decided that CFAs and success fees should be used to enable parties to bring claims that they would not otherwise be able to. It would not be an appropriate use of case management powers to limit recoverable costs.
- (3) The claimant’s solicitors did not come within CPR r25.14 as they had not contributed or agreed to contribute to the claimant’s costs in return for a share of money or property which the claimant may recover in the proceedings.
- (4) CPR r3.1(3) is not a general power to require a claimant who is not subject to a security for costs requirement effectively to have to make a security for costs payment by attaching it as a condition to general case management orders.
- (5) The court was not satisfied it was appropriate to make an order under CPR r3.1(5) or that such an order could be fulfilled. The court was not satisfied that the failure to comply with costs orders in other proceedings was relevant. The defendants had challenged the s4 application and alleged that the claimant was an abusive husband. The claimant was entitled to defend those allegations. There were limited criticism of the claimant, but the court was not satisfied that the claimant was regularly flouting court procedures or demonstrating a want of good faith.
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