PT-2022-BRS-000087 - [2025] EWHC 2609 (Ch)

For reasons that will become apparent, I largely concur with Ms John’s submissions both as framed very clearly in her skeleton argument and chronology.

Ms John went through the chronology. Luke instructed solicitors in May 2021, having waited over a year since Keith’s death for Vivian’s dispute to move forward. She pointed out that the completed forms of authority for Vivian to obtain medical records were supplied in October 2020, their use was expanded to include the mortgage file, bank statements and the charity files (provided Vivian sought permission in advance). Ms John referred to the fact that Coodes took until late September to undertake to pay the Larke v Nugus reply costs and had refused to undertake to pay the further costs of the additional enquiries made by Coodes in 2021.

By mid-2021, Ms John stated that Coodes had had Keith’s will and Power of Attorney file; the answers to their questions to Stephens Scown, and had the power to make their own enquiries by virtue of the signed authorities from the executors. Nalders were reasonable in making their enquiry of the nature of Vivian’s case, she said. The only documents outstanding as at 24 August 2021 were the full mortgage file and the Social Services records. Ms John pointed out that those files were never disclosed (the bank and Social Services I am told normally require a grant) and that Stephens Scown had disclosed all of the records that were in Keith’s possession which Stephens Scown thought were fairly complete in any event. These painted a picture of a man with capacity, and it is noteworthy Ms John said, that Adult Social Care only became involved in April 2018, nearly two years after the Will had been executed by Keith.

Ms John submitted that by the time that proceedings were issued in July 2022, Vivian had had all of the key documents and information; this was two years after the Larke v Nugus request and 14 months on from when Luke first requested Vivian to provide the nature of his claim. Of course this was now 28 months after Keith’s death. Repeated promises of a letter of claim within defined periods had been made and broken without explanation, Ms John said, and it was simply the case that someone had to do something to move things on. Moreover, Luke’s case was simple: he wanted a professionally drafted will executed by a man whose records disclosed no suggestion of incapacity to be admitted to probate. It does not lie in Vivian’s mouth to complain that he did not know what Luke’s case was before he issued proceedings, she said.

Ms John said that Coodes could certainly be criticised for their approach to the Reply and Defence to Counterclaim being served 1 day late: they simply stonewalled any discussion about the issues raised, she observed, until a formal application was made by Nalders to correct the position (though there is no sanction for this lateness in the CPR).

Ms John did rely on Merial v Santyo: She relied on paragraph 31 in which Mann J said:

Ms John gave a distillation of paragraphs 40; 43 and 44 in Merial as that it is only where the settlement opportunity is lost or that question is uncertain should a penalty follow from the lack of a letter of claim. Where a court can be certain that there was no difference to the course of the litigation by that failure, no sanction should follow.

In the instant case Ms John pointed out that the case had been hard fought to trial; Vivian had been invited to drop certain key parts of the claim and had refused and had even declined to concede capacity following the Notice to Admit Facts.

Ms John submitted that, as of April 2023, Vivian was holding a lot of information that he had not shared with Luke e.g. all information relating to the proprietary estoppel claim and also Betty’s will file. He had refused to provide early disclosure of this material. Accordingly, Nalders were perfectly justified in refusing to mediate at that stage absent Vivian’s agreement to early disclosure. Thereafter, once the CCMC was listed the parties were rightly concentrating on that, she said. It was only at the CCMC that Vivian agreed or was ordered to give disclosure by 6 June 2023 of the medical records he held in respect of Keith and by 27 June 2023 all parties were to disclose all documents in respect of a very detailed and extensive list of issues. Ms John emphasised that it was after disclosure of the medical records that Luke issued the Notice to Admit Facts on 8 June 2023.

Luke changed his solicitors and instructed Wright Hassall on 10 July 2023 who immediately informed Coodes of the change. Once they had reviewed the case with the benefit of the disclosure ordered at the CCMC, Ms John submitted that their agreement to mediate communicated on 8 September 2023 was reasonable and in good time.

Ms John distinguished Northamber on the basis that in that case the Claimant had ignored the invitation to mediate and refused to mediate at all. There was no authority cited by Mr McKean that dealt with a delay. A party is entitled to wait until it is in receipt of sufficient information (within reason) to make a mediation worthwhile Ms John submitted: Vivian held all the cards and had refused to disclose them, she said.

Furthermore, Ms John submitted, nobody was saying that an earlier mediation would have been successful. On the issue of fewer costs having been incurred in April 2023 as compared to September, Ms John said that that needed to be weighed against the lack of material. It was never raised as an issue by Coodes that the delay had caused damage to the prospects of success, either prospectively or at the time. By the same token, very little costs had been involved between the first suggestion of mediation and September (and all steps from September were suspended pending the mediation itself). Furthermore, Ms John observed that Coodes’ response to the invitation to Vivian to make an offer in advance of the mediation was to refuse and instead invited Luke to discontinue and pay all other parties’ costs to date. It was clear, she submitted, that the parties were very far apart, even at the stage of agreeing to mediate.

Concluding on this issue, Ms John submitted that there were no conduct grounds of complaint, and nothing that did or did not happen vis a vis Luke’s conduct made a difference to the trajectory of the litigation or incurred additional costs.

The first observation made by Ms John is that these cannot in principle apply to the proprietary estoppel claim, which account for at least 50% of the costs incurred by the parties. In fact, she submitted, the proprietary estoppel claim involved much wider disclosure: Betty’s will file; evidence as to detrimental reliance, especially the investigative work carried out by Wright Hassall which revealed important adverse findings such as the gift of Burhos to Vivian as opposed to his purchase of it and the transfer of the barns to Vivian’s sons. There was also an extremely lengthy witness statement from Adam which went primarily to the proprietary estoppel claim and at least 50% of the cross-examination went to the proprietary estoppel claim, she added.

Ms John prefaced her submissions with the general proposition that costs may be paid from the estate only where the testator’s own conduct (or that of a beneficiary) generated the dispute; a “very strong” factual case is required and modern authority “narrows rather than extends” this ground: see Leonard para. 13-14.

She referred to Mr McKean’s invitation to depart from In Re Cutcliffe’s Estate, and referred me to paragraphs 18 and 21 of Kostic reiterating the principled approach is to narrow the scope of this exception.

Ms John submitted that there was no obligation on Keith to tell Vivian and his sons that he had made a will excluding them, as that was contrary to both Kostic and Cutcliffe. There was no obligation on Keith to explain his reasoning. There were policy reasons not to require a testator to reveal their testamentary intentions. To depart from Cutcliffe would set a dangerous precedent Ms John suggested: it would encourage litigation over wills at the estate’s expense even in weak claims.

The facts of this case were nowhere near a proper finding as to the first exception Ms John submitted. The court found at paragraph 303 of the Substantive Judgment that there had been no serious promises made. Keith was not the cause of this litigation. The court found that Keith’s actions had been “logical” by virtue of the family’s disinterest in him after Betty had died. Ms John said that with a bit of logical soul searching it should have been obvious to Vivian that Keith had good reason to leave his share of the farm elsewhere, particularly as it was pleaded out in the Reply and Defence to Counterclaim with Betty’s division of the farm and the family’s abandonment of Keith. Ms John also emphasised how Keith had taken careful steps to have the Will professionally drafted with his GP as one of the witnesses.

The starting point of Ms John’s submissions was the very extensive disclosure list produced by Vivian running to 21 pages of entries, many involving multiple pages and class entries such as GP records. This showed the extent of knowledge and documentation Vivian had prior to proceedings being issued.

By 8 September 2023 Vivian was willing to mediate without expert medical evidence and with limited witness evidence and so, submitted Ms John, the investigative phase had clearly finished by then. But it had in fact finished much earlier given the material that Vivian had (and refused to disclose – itself a conduct issue Ms John said). She referred me to paragraph 12 of her skeleton argument to which I shall return.

As regards the issue of medication, the Court was able to reject the capacity case very easily submitted Ms John, and there was no further investigation required beyond the GP Notes and the charity files all of which Vivian had from an early stage. These reflected Keith’s ability to hold long and lucid conversations she said. The most obvious observation was the fact that Keith’s own GP witnessed the Will without any concerns about his capacity and he was fully aware of the level of medication Keith was on.

Ms John submitted that Mr McKean’s points regarding the incompleteness or lack of detail in the Part 36 were simply wrong. She referred me to paragraph 13 of Adams v Options UK Personal Pensions LLP [2021] EWCA Civ 1188, submitting that a Part 36 Offer is not a contract and often leaves the mechanics to be decided at a later stage. Ms John emphasised that none of the points now raised had been raised by Coodes at the time. Such matters as the issue of admission of the Will to probate and Luke not being in a position to transfer the land were obvious and the current attack is opportunistic.

In terms of the genuineness of the offer, Ms John referred me to Leonard at paragraph 17-18. She submitted that there was real value to the offer, amounting to 14.6% of the estate with a value of approximately £82,000 (as calculated in her skeleton argument).

In the circumstances, the court should apply CPR 36.17 with full force Ms John submitted. In light of Vivian’s conduct and the discredit applied to him and some of his witnesses, the uplift percentage should be the full 10% she said.

The simple point made by Ms John was the obvious one that if Vivian did not pay the executors’ costs, it would effectively be Luke paying them despite being the successful party in the litigation.

Ms John also submitted that the executors’ costs would not have been incurred if Vivian had not challenged the Will, and that there was absolutely nothing in principle to suggest that Vivian should not pay their costs in those circumstances.