Analysis
The claimant applied for a non-party costs order against GWCA Solicitors Ltd (GWCA), which had been joined as the ninth defendant. The application arose out of a claim for the rectification of the will of James Murray McKay deceased (the deceased) or, in the alternative, for a declaration as to the true construction of clause 11 of the will. The will, which had been drafted by a predecessor practice to GWCA, made provision in clause 11 for the division of the deceased’s residuary estate between ‘such of the beneficiaries named in clauses 4.1 to 4.8 inclusive absolutely as shall survive me and in accordance with the provisions relating to each gift’. The beneficiaries, consisting of family members and charities, were entitled to pecuniary legacies of varying amounts.
In the event, the claim for rectification (to divide the residuary estate among only the family members) failed and it was decided, in relation to the alternative claim, that clause 11 of the will should be construed as providing for the residuary estate to be divided between each beneficiary named in clauses 4.1 to 4.8 pro rata, according to the proportion which that beneficiary’s legacy bore to the total gifts made under clause 4.
GWCA accepted that it should bear all parties’ costs of the construction issue on the basis that its predecessor firm was responsible for the ambiguous drafting of clause 11 of the will.
The question in dispute between the parties was therefore primarily addressed to the issue as to whether GWCA should bear the costs of the whole or any part of the unsuccessful rectification claim.
Held (making a non-party costs order against GWCA):
The general principles to be applied were not in dispute. Costs orders against non-parties were exceptional and an order should not be made unless it was just and fair that the non-party should be bound by the evidence given at trial and the judge’s findings of facts. Although the claim for rectification had failed, the circumstances giving rise to it were traceable to the acts and, in particular, the omissions of the predecessor firm of GWCA.
The deceased’s initial instructions were taken by one solicitor, but a revised draft will was prepared following a meeting with another solicitor who recorded in an attendance note that the residue was to be divided equally between those people mentioned in clauses 4.1 to 4.8. The file was then returned to the solicitor with conduct of the matter, and the first and only opportunity to review the terms of clause 11 was not taken when the deceased met her on the occasion of signing the will. If it had been, a competent solicitor would have appreciated the need to confirm that the deceased understood that the effect of clause 11 was to include the charities within the distribution of the residuary estate and the need to ascertain what proportion he intended each of them to receive. Thus, although the claim to rectification so as to refer only to family members failed, it was a reasonable claim to bring based on the evidence of the attendance note.
It would not be a fair and just outcome to dismiss an application against GWCA and leave the family members, if so advised, to bring a professional negligence claim given that the predecessor firm had been put on notice. However, it would not be just in normal circumstances to order GWCA to pay all of the costs of the claim, as it could not be said that the predecessor firm was solely responsible, merely that it lost the opportunity on or before the signing of the will to confirm and clarify the deceased’s instructions in relation to the distribution of his residuary estate. As regards an apportionment of costs between the two claims, rather than attempt to apportion costs between them it would be just and fair to make an order that GWCA or its insurers should pay 60% of all parties’ costs of the total claim, to be assessed if not agreed.
JUDGMENT DEPUTY MASTER TEVERSON: [1] On 22 March 2023 I handed down my reserved judgment on the underlying claim with neutral citation number [2023] EWHC 642 (Ch) (‘the judgment’) following a one day trial on 18 January 2023. On 6 April 2023 it was ordered by consent as between the Claimant and the First to …Continue reading "Pead v Prostate Cancer UK & ors [2024] WTLR 667"