Analysis
On 10 February 2022 judgment was delivered on a claim brought under Part 8 of the Civil Procedure Rules in relation to issues which had arisen in the administration of the estates of Angela and John Dunbabin. The main issue related to the question whether they had severed their beneficial joint tenancy, so as to hold the legal title to their residence upon trust for themselves as tenants in common in equal shares, with the result that on the death of Angela her half share devolved according to the terms of her will instead of passing automatically by survivorship to John. The claimants said that they had. The defendant said that they had not. It was held that they had. The question now arose as to what order to make as to costs.
Held (dealt with on paper):
As was well known, costs were at the discretion of the court, though the general rule was that the unsuccessful party paid the costs of the successful party. In deciding whether to make an order and if so what order, the court would have regard to all the circumstances, including the conduct of the parties and any admissible offer to settle the case. The successful party meant the successful party in the litigation as a whole, not the successful party in any particular issue. In this case, this was the claimants and the general rule would therefore operate so as to require the defendant to pay their costs. Although it was accepted that the defendant may have been told by his father something to support his case at trial that no severance had taken place, this was not sufficient to make a different order from the general rule nor was it sufficient even though he acted as a litigant in person. The defendant would therefore be ordered to pay the claimants’ costs on the standard basis, subject to detailed assessment. Further, there was no good reason why the defendant should not be ordered to pay a reasonable sum on account of costs which, on the basis of a costs schedule filed before trial, would be fixed at 60% allowing a 40% margin for error in the estimation.
The defendant was named an executor in the wills of both parents, though he only proved his father’s will as he took the view, consistent with his case on severance, that there was nothing of substance in his mother’s estate. The question thus arose as to whether he should be deprived of his indemnity to recover his costs out of the estates for which he acted in the litigation. Having regard to the special provisions in the Civil Procedure Rules relating to the question whether costs were properly incurred in all the circumstances of the case, it was clear that the defendant never purported to act as Angela’s personal representative. By resisting the claim that there had been a severance, he certainly acted in the interests of John’s estate and against those of Angela’s. He also acted in his own interest and, notwithstanding an obvious conflict of interest, he did not attempt to seek the directions of the court. In those circumstances, the defendant had not incurred any litigation costs properly in relation to Angela’s estate and should therefore be deprived of his indemnity. However, the position was different in relation to John’s estate – even though he acted in his own interest, it was accepted that the defendant had in substance acted for John’s estate. While aspects of his conduct were criticised, the defendant did his best as a litigant in person to assist the court and should not be deprived of his indemnity in relation to John’s estate.
JUDGMENT HHJ PAUL MATTHEWS: [1] On 10 February 2022 I handed down my written judgment on this claim brought under part 8 of the Civil Procedure Rules in relation to issues which had arisen in the administration of the estates of Angela and John Dunbabin. The main issue related to the beneficial interests in the …Continue reading "Dunbabin & ors v Dunbabin (costs) [2022] WTLR 935"