Analysis
This was an appeal against the decision of Deputy District Judge Whitehead dated 13 December 2022, whereby he made no order as to costs but granted the claimant permission to appeal following his successful summary judgment application, by which the claimant had sought and obtained pronouncement in solemn form in favour of the validity of the will of his mother, Ina Margaret Lumb (deceased), and ancillary orders. The learned judge found that the usual costs rule that costs follow the event did not apply because it was displaced by CPR r57.7(5)(b) under which the court would not make an order for costs against the defendant unless it considered that there was no reasonable ground for opposing the will, since he had given notice in his defence that he did not raise any positive case and sought to cross-examine the attesting witness in accordance with CPR r57.7(5)(a).
Seven separate grounds had been put forward on behalf of the defendant as to why summary judgment should not be granted, which the claimant had contended was akin to asserting a positive case such that the defendant could not rely on the costs protection of CPR r57.7(5). Although the judge decided that none of these grounds had a reasonable prospect of success, he considered that the same were ‘reasonable arguments to run’ and that under CPR r57.7(5)(b) he was required to make no order for costs against the defendant even though he considered that this was ‘a rather unsatisfactory outcome’. In granting permission to appeal, the judge recorded that he regarded CPR 57.7(5) as containing clear wording which however ‘yielded an unfair result in this instance’. He considered that an appeal judge might, taking policy considerations into account, construe the rule differently or decide that the defendant did not have reasonable grounds for opposing the will.
On an appeal on costs, HHJ Davis-White KC, sitting as a judge of the Chancery Division, analysed the applicable procedural provisions, CPR r57.7(5) and CPR 24, and considered the pertinent authorities. He considered the limits to CPR r57.7(5) before proceeding to examine what was meant by a ‘reasonable ground’ for opposing the will and comparing the tests for judgment in trials and summary judgment applications. The judge listed his conclusions as to the law and practice at para [130], noting that there were three probate costs rules/principles. In Kostic v Chapman [2007] Henderson J had summarised the overall justification for these principles and competing policy considerations. CPR r57.7(5) codified one of these principles and this codification represented the rule makers’ judgement as to where to draw the line between these competing considerations. However, HHJ Davis-White KC stated that in interpreting and applying CPR r57.7(5)(b), the court should bear in mind the factors mentioned by Henderson J in Kostic at para 21, namely:
- (a) that the inquisitorial role of the court in probate cases was much less than it once was; and
- (b) that the court increasingly aims to discourage litigation, and encourage settlement, through removing the usual ‘costs follow the event’ rule.
The costs protection under CPR r57.7(5)(b) required notice to be given under CPR r57.7(5)(a) and compliance with that notice. Although the rule placed the burden of proof on the propounder of the will to show that there were no reasonable grounds of opposition, a party relying on the costs protection would need to identify any reasonable grounds and evidence these.
If a party was relying upon CPR r57.7(5) it would normally not be right for them to adduce any evidence to lay grounds to challenge the validity of the will. Consideration might be given to requiring this party to identify prior to trial or summary judgment hearing the reasonable grounds they rely upon in challenging the validity of the will and to provide copies of documents to be relied upon in cross-examining any witnesses. There must be a link between the grounds identified prior to trial/summary judgment and those in fact put forward.
The grant of a judgment or summary judgment in favour of validity of a will did not mean automatically that there had been no reasonable grounds of opposition. However in proceedings where there was at no time any real prospect that the claimant would fail to establish validity, there could have been no reasonable grounds to oppose. Grounds which could never have survived a summary judgment test were not reasonable within CPR r57.7(5).
On appeal, the appeal court would accord due deference to the first instance judge who decided whether there were ‘no reasonable grounds of opposition’. However, citing In re Hitco 2000 Ltd [1995], if there was little dispute as to the primary facts then the appellate court would be ‘in as good a position’ as the first instance judge to form a judgement. This would occur in many cases of determining whether there were no reasonable grounds of opposition under CPR r57.7(5), particularly in a summary judgment context.
Turning to the grounds of appeal, HHJ Davis-White KC set out the grounds at para [131]:
- (1) The judge was wrong to state that he was prevented from making a costs order by CPR 57.7(5) and wrong not to exercise his discretion to make a costs order under CPR 44.2, having also stated that not making a costs order led to an unfair outcome.
- (2) The judge was wrong not to follow Elliott v Simmonds [2016] EWHC 962 (Ch) and Elliott v Simmonds [2016] EWHC 732 (Ch), which featured analogous facts and circumstances.
- (3) The judge was wrong to both to:
- (a) enter summary judgment in favour of the claimant on the basis that the defendant’s grounds for opposing the will had no real prospect of success; and
- (b) conclude that the defendant had reasonable grounds for challenging the will, such that he could not make a costs order against the defendant under CPR 57.7(5).
- Those conclusions were ‘incongruous and incompatible’.
- (4) The judge was wrong to conclude that any of the grounds for opposing the will were reasonable, when it was clear from his judgment that all of the grounds were unreasonable and the conduct of the defendant was unreasonable in pursuing these grounds.
- (5) The judge had not attached the correct weight to the public policy argument for awarding costs. A lack of costs consequences would risk opening the floodgates to disappointed beneficiaries seeking to frustrate the probate process despite knowing that they had no genuine prospect of succeeding.
HHJ Davis-White KC considered there was force in the claimant’s general point that there was an incongruity in finding that there was no real prospect of any of the grounds raised preventing the claimant proving the 2019 will and nevertheless holding that the grounds amounted to reasonable grounds of opposition. In this respect, it was important to note that none of the seven grounds of opposition advanced were altered or impacted upon by the cross-examination of the attesting witness. The judge concluded that if there was never a real prospect of a ground of opposition preventing proof of a will, then it could not be said that the ground was a ‘reasonable ground of opposition’.
HHJ Davis-White KC went on to find all seven of the grounds advanced by the defendant were unreasonable. He observed that the judge’s judgment failed to identify why he thought that each of the seven grounds were reasonable grounds within the meaning of CPR r55.7(5). The judge found that the position was analogous to that in Re Grayan Building Services Ltd [1995] in that there was a mismatch between the primary findings of fact and primary evaluation of the grounds of opposition and the conclusion drawn that the grounds were nevertheless reasonable grounds of opposition. Like Henry LJ in Grayan, HHJ Davis-White KC had been unable to find reasons which would justify the conclusion reached. Further, he found that the judge appeared to have equated mere arguability with reasonableness, which was the incorrect test.
Held (awarding costs on the standard basis):
HHJ Davis-White KC concluded that the appeal succeeded and the costs order of the deputy district judge was set aside. The costs protection of CPR r57.7(5) did not apply. Accordingly, the relevant applicable principles were those set out in CPR Part 44. He had sufficient material before him to make the costs decision afresh and so ordered that costs followed the event and that they should be paid by the defendant to the claimant on the standard basis.
HHJ Davis-White KC also found that had the will not been opposed the claimant would have been able to prove it in common form in the usual way and would not have had to prove it in solemn form. There was no room for an argument that proof in solemn form would have been necessary in any event, so that some costs should be excluded from the costs order.
JUDGMENT HHJ JUDGE DAVIS-WHTE KC: Introduction [1] This is an appeal against the costs order of Deputy District Judge Whitehead dated 13 December 2022, whereby he made no order as to costs but granted permission to the Appellant to appeal. The context was a successful summary judgment application by the Claimant, seeking pronouncement in solemn …Continue reading "Lumb v Lumb [2023] WTLR 1459"