CH-2025-BRS-000001 - [2025] EWHC 2530 (Ch)

I deal first with the incidence of costs. The rules on costs are well known. Under the general law, costs are in the discretion of the court: Senior Courts Act 1981, section 51(1); CPR rule 44.2(1). If the court decides to make an order about costs, the general rule is that the unsuccessful party in the proceedings pays the costs of the successful party: CPR rule 44.2(2)(a). However, the court may make a different order: CPR rule 44.2(2)(b). In deciding whether to make an order, and if so what, the court will have regard to all the circumstances, including “the conduct of all the parties” and any admissible offer to settle the case (not falling under CPR Part 36) which is drawn to the court’s attention: CPR rule 44.2(4).

The respondents ask for their costs, and on the indemnity basis. In his submission dated 25 September 2025, Julian says:

“53.

The Appellant therefore respectfully invites the court to order that the Respondent is not invited to recover costs.”

(I assume that “invited” is a mistake for “entitled”.) Yet the draft order provided by Julian with the same submission says instead that Julian is to pay his siblings’ costs “on the standard basis if not agreed”. So, it is not clear what Julian’s position is, and I must decide the question for myself.

First, I ask myself whether the court should make a costs order. Unfortunately, today, litigation costs a significant amount of money. This was a serious dispute between a personal representative and beneficiaries of the estate about who should administer the estates concerned. It was proper to bring it to court, and to obtain the court’s decision. The appeal against that decision has failed. in my judgment it is right to make a costs order.

Next, I need to consider which party, for the purposes of the “general rule” in rule 44.2(2)(a), was the successful party overall. In my judgment, this was the respondents. The appeal failed. And so the general rule would indicate that I should make an order in favour of the respondents. Is there any reason not to do so here? On the face of it, I can see none.

What Julian says is that CPR PD 44, paragraph 9.5(4), requires that a costs statement be filed and served not less than 24 hours before the time fixed for the hearing. However, in this case the respondents served their statement of costs at 17:48 on the day before the hearing. So Julian says that, because this was after 16:00, it was deemed served on the next day, that is, the day of the hearing. He cites no authority for that proposition.

I agree that CPR PD 5B, paragraph 4.2(8), provides that an email received by the court after 16:00 is treated as received on the next day that the court office is open. But there is no equivalent for service on parties (compare CPR PD 6A, paragraph 4). And it is the parties who need the statement more than the court. Judges usually do not look at the costs statements at all before costs are dealt with at the end of a hearing. Julian says that no explanation has been given by the respondents for breaching the rule, and that similar breaches of the rule by them in the past mean that “the Respondents should not recover their costs”.

I reject this submission, which is, frankly, absurd. It would be disproportionate to hold that failure to comply with the practice direction meant that a successful party could not otherwise recover costs at all: see eg Macdonald v Taree Holdings Ltd [2001] 1 Costs LR 147 (Neuberger J), on appeal [2001] EWCA Civ 312 (May LJ). Neuberger J said:

“23.

… Where there is a failure to comply with the Practice Direction and a schedule of costs is not served more than 24 hours before the hearing, the court should take that into account but its reaction should be proportionate…

[ … ]

26.

I do not take the view … that in a case of mere failure to comply, without more, it would be right to deprive a party, otherwise entitled to a summary assessment of his costs, of his costs altogether.”

Julian says (correctly) that this case was decided before the “Jackson” costs reforms of 2013. But that decision has been followed subsequently, for example by Nugee J in Kingsley v Orban [2014] EWHC 2991 (Ch), and most recently by Leech J in Whittaker v Bertha UK Ltd [2023] EWHC 2554 (Ch).

In the present case, Julian had the statement the evening before the hearing, when Julian’s counsel would have been preparing for the appeal the next day. So any prejudice would be minimal. In any event, costs statements are required to be served under paragraph 9.5 “to assist the judge in making a summary assessment of costs” (see paragraph 9.5(1)). Yet (as I hold below) the present case is not one for summary assessment. So in fact Julian is not prejudiced at all. This complaint goes nowhere. It is formalism of the most unthinking kind. Accordingly, I will order Julian to pay the respondents’ costs of the appeal.