Fellner v Cleall [2022] WTLR 1271

Analysis

The claimant was the daughter of the deceased. The defendant was said to have been in a relationship with the deceased. The deceased appointed the defendant along with two others as executors of his will. He also devised a freehold commercial property and £75,000 to the defendant. The residue of the estate was to be divided equally between the claimant and her two siblings. The claimant disputed the validity of the will.

On 6 May 2021, after a chain of correspondence, the claimant’s solicitors wrote to the defendant’s solicitors on an open basis setting out various detailed points. It also contained an open offer for the defendant to agree to the grant ad colligenda bona being set aside by consent and an independent administrator being appointed to take a limited grant.

An extension of time for a response was agreed. The claimant’s solicitors stated that acceptance of the offer was conditional on meeting the claimant’s costs of the application which had been prepared. The defendant’s solicitors stated a response would be provided by 2 June 2021. No response was received on 2 June 2021, and proceedings were issued on 3 June 2021. The response was transmitted on the morning of 3 June 2021. It agreed to the appointment of an independent administrator, but subject to various conditions including that the defendant approved of the administrator and that the defendant maintained day-to-day management of the commercial property. It also declined to meet the claimant’s costs.

The claimant brought proceedings under Part 8 seeking the revocation of the grant ad colligenda bona in favour of the defendant and the replacement of the defendant with a professional executor. In her acknowledgment of service the defendant indicated she did not intend to contest the claim. The evidence filed in response to the claim was around 70 pages, disputing the allegations.

After the filing of evidence a consent order was agreed on 14 July 2021 which agreed the removal of the defendant as administratrix ad colligenda bona and that a professional substitute administrator be appointed. It provided that liability for costs was to be determined by the court. The issues for the court at the disposal hearing were:

1. (1) what order for costs should be made; and
2. (2) if the defendant should pay, should she pay personally or be entiled to the usual indemnity from the estate.

The claimant sought an order that the defendant should pay the costs personally. The defendant sought no order as to costs, but if costs were ordered that she should be indemnified out of the estate.

Held:

What order for costs should be made?

1. (1) Considering the substance of the case the claimant appeared to be the winner. The consent order gave the claimant what she had requested in the proceedings.
2. (2) Proceedings had been issued with speed but urgency was necessary. A property had been sold and the defendant was actively running the other properties. The defendant’s response to the open offer of 6 May 2021 was insufficient and did not amount to a response capable of acceptance, particularly having regard to her continued management of the commercial property.
3. (3) Having reviewed the correspondence, the issues between the parties were clear and the offer to resolve them in the 6 May 2021 letter was admirably succinct and to the point. The offer was incapable of being misunderstood. In the circumstances a formal letter headed ‘Pre-action Protocol’ or ‘Letter Before Claim’ was not necessary. The parties knew exactly what was in dispute.
4. (4) The defendant not accepting the allegations was a reasonable position to take. Instead of filing detailed evidence in response, the correct way through was for the defendant to state that the allegations were not accepted but that there was no point in incurring costs when the result would be the same, namely stepping down.
5. (5) The defendant was to pay the claimant’s costs.

Was the defendant entitled to an indemnity from the estate?

1. (1) The failure to obtain directions from the court before defending the proceedings was not unreasonable in the circumstances of the proceedings, given the speed at which matters were progressing. The issue was the conduct of the defendant and whether it was reasonable.
2. (2) A reasonable offer had been made and was not accepted. A counter-offer was made. A defence to the claim was made which was self-serving and unnecessary. The defendant’s conduct was not reasonable in those circumstances and took her outside the protection afforded to personal representatives and trustees. The defendant was to meet her personal costs.

JUDGMENT DEPUTY MASTER LINWOOD: [1] This is the disposal hearing in a Part 8 claim brought by the claimant, Jane Alexandra May Fellner. The claimant is a sister – in fact I believe a half-sister – of the deceased, Jason Charles Head Fellner and the claimant has two living siblings who support the claimant’s position …

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