Chopping v Cowan & anr [2023] WTLR 1237

Analysis

The deceased died on 2 July 2008 leaving a will dated 6 December 2007. The claimant was the deceased’s daughter who was the beneficiary of the residue of the deceased’s estate. The defendants were the deceased’s executors who had acted as the deceased’s solicitor and tax adviser during his life. The will contained a charging clause. The estate had a gross value of £3,814,818. The first defendant had charged legal fees of £78,818.12, and other professional fees from solicitors and tax advisers had also been incurred totalling around £100,000. The claimant challenged the fees borne by the estate and obtained an order from the Senior Courts Costs Office (SCCO) for an assessment of the first defendant’s fees pursuant to s71 Solicitors Act 1971, but those proceedings were stayed following the decision in Tim Martin Interiors Ltd v Akin Gump LLP [2011], and an application under CPR Part 8 seeking an inventory and account was issued. The claim form also requested an order for an inquiry into the sums incurred and whether each disbursement was fair and proper. The witness statement in support explained that the claimant sought an account to challenge the reasonableness and propriety of the fees paid out of the estate. In response, the defendants applied for summary judgment under CPR Part 24 on the basis that the fees were proportionate to the value of the estate and the work within the statutory indemnity under s31(1) Trustee Act 2000.

Held:

1. (1) The claimant would not receive an order for an account; she had no absolute right to an order for an account and did not need one as full estate accounts had been provided. There was no process of reviewing the expenses incurred currently before the court. To obtain an order or an account where full accounts had been provided, there must be a breach of trust or a case made out for further inquiry before expenditure will be investigated in detail. The claimant could not ask for moderation of professional fees incurred due to the protection of s15 of the Trustee Act 1925.
2. (2) The claimant was asking the court to examine each disputed item in the detailed bill of costs produced by the SCCO’s order. That was a different exercise to a general decree for an account (Johnson v Telford [1827] and Allen v Jarvis [1869] distinguished) and went far beyond what was envisaged by moderation as part of the review of expenditure incurred by executors.
3. (3) There was no real prospect of obtaining the order sought. Johnson and Allen were decided before the statutory protections contained in s15 Trustee Act 1925 and s31 Trustee Act 2000 came into force. An entitlement to moderation was inconsistent with the statutory right to pay debts of the estate and to an indemnity without recourse save for where there has been a breach of trust. There was no obligation to show that the best-value professionals were instructed and it was not necessary to justify every element of the charges incurred. The evidence of the claimant fell well short of showing that the charges were improperly incurred or that there was a possible breach of trust. The charges paid on their face were not untoward or excessive, but appeared proportionate to the size of the estate and the nature of the work.
4. (4) Even if there was an entitlement to ask the court for moderation of professional fees incurred by executors/trustees, it was a summary process unlike the position under the Solicitors Act 1971.

JUDGMENT MASTER MARSH; [1] This claim arises in connection with the estate of Terence Charles Robey who died on 2 July 2008. He left a will dated 6 December 2007 under which the Claimant, his daughter, was the beneficiary of the residue of his estate. The defendants were nominated as the deceased’s executors and probate …

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