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

It is common ground that the framework governing the exercise of the court's discretion is to be found in the CPR. The general rule (pursuant to CPR 44.2(2)(a)) is that the unsuccessful party will be ordered to pay the costs of the successful party, albeit that (pursuant to CPR 44.2(2)(b)) the court may make a different order.

Pursuant to CPR 44.2(4) and 44.2(5):

There is no question that the general rule applies to contentious probate cases, and the question is always whether there is sufficient reason for departing from the general rule. However, it is common ground that, in probate cases only, it is also necessary to consider whether the court should be guided in the exercise of its discretion by two long-established common law exceptions which have survived the introduction of the CPR. These exceptions were summarised in Kostic v Chaplin [2007] EWHC 2909 (Ch); Perrins v Holland [2009] EWHC 2556 (Ch) and more recently by Joanna Smith J DBE in Leonard and Others v Leonard and Others [2024] Costs LR 723.

Joanna Smith J summarised the exceptions as follows at [13]-[14], and it is worthwhile setting out her very helpful summary in full:

I am afraid that I consider Mr McKean’s characterisation of Luke’s conduct as being in brazen breach of the CPR as mistaken.

I first bear in mind three significant factors of general application.

The criticism raised against Luke under this heading of conduct is the failure to issue a letter of claim and his issuing of proceedings in July 2022 which was said to be precipitous because Vivian was still collating his case. A summary of my reasons for disagreeing with those criticisms (as also in general argued for by Luke and the executors) is as follows. Vivian had had ample time and was furnished with ample material to have served a letter of claim, probably by the summer of 2021, and it was understandable, even inevitable, that Luke’s patience would run out (as well as the executors’ funds running out) and that Luke would issue proceedings sooner or later. In fact, I would go so far as to say that Luke was rather patient in deferring as long as he did. Without having been told the detail of what Vivian’s case was, he was in no position to know what the prospects of settlement were and, furthermore, there was no practical effect of the failure to issue a letter of claim because the nature of Luke’s case was obvious. Further still, a letter of claim would have achieved nothing but more delay and prevarication on Vivian’s behalf. Luke had done what he could to provoke Vivian into action by issuing a Warning against the Caveat which simply led to an Appearance from Vivian and that took the matter no further. Some more detailed observations on the delay on Vivian’s part follow.

It is notable that Coodes refused to agree to pay Stephens Scown to reply to the questions arising from the replies to the Larke v Nugus requests which were clearly themselves in the form of such requests. Those requests were detailed and very specific, and verge on the pedantic at the stage of drafting a letter of claim. In passing, I do not agree with Mr McKean that the letter of 4 March 2022 from Stephens Scown was “finally the reply” to this letter: the contents hardly related to it. Most of the relevant information was supplied in Stephens Scown’s reply dated 3 June 2021.

I accept that some of the delay between July and November 2020 must be attributed to Stephens Scown’s failure to supply the signed mandates, and there would inevitably be a short delay whilst those mandates were being put into effect. However, it is not the case that Coodes acted swiftly to issue a letter of claim after the mandates were received. It was thus not this delay which caused Luke to issue proceedings.

Luke waited until May 2021 before instructing solicitors to start probing Vivian’s position which was, itself, somewhat patient, and reflects Luke’s understated and diffident approach to the whole issue of Keith’s gifts to him. Nalders pressed for a letter of claim on 2 August, and it took Coodes until 24 August to promise one within 5 weeks. Nothing materialised and no explanation was given.

The documents that Coodes were holding out for after June 2021 were simply not of sufficient importance to the drafting of a letter of claim to justify the delay that followed. There was some information from Barclays and the social services records (these were in the event never obtained). These were not necessary to formulate Vivian’s claim. The details requested made by Coodes in their letter of 27 September 2021 are too granular: a letter of claim is not a pleading, and the list of assets is not relevant to the letter of claim.

By November 2021 Stephens Scown had released all the Adult Social Care material in Keith’s possession which they told Coodes was unlikely to be materially added to by access to the files themselves. It must be borne in mind that Adult Social Care did not get involved with Keith until long after the Will was executed. Stephens Scown on at least two occasions told Coodes that the costs of obtaining a limited grant outweighed the very limited benefit that would ensue: Vivian had access to most of the material for both of his claims to be set out. Coodes’ retort that there would be a need for a grant application in any event was misconceived, as Stephens Scown pointed out: a limited grant would be in addition to a full grant and so would represent additional expense.

I note here that the executors have been scrupulously neutral throughout the pre-action and the litigation phase despite the obvious links between Stephen Ellis and Luke in the face of very hostile litigation from Vivian.

The five further requests made by Coodes in December 2021 did not go to the issues required for a letter of claim: they were practical issues which may have had some bearing on whether it was commercially prudent to make a claim, but not to the principles of founding one.

Mr Clarke’s first statement was given in February 2022, and that formed the basis for the due execution part of the claim, together with Dr Fairlie’s evidence which they already had. Mr Clarke corrected himself on 1 March 2022.

Mr McKean’s attempts to suggest that the whole of the Barclays file, together with the business plan produced for Keith, were necessary in order for Vivian to formulate his claim simply do not hold water. The business plan was not even Keith’s document and the fact of the Barclays loan was all that was required to advance Vivian’s case that its existence showed that Keith had no grasp of money and/or his estate.

I reject, too, Mr McKean’s submission that the letter of response to Vivian’s Counterclaim was an indication that a letter of claim should have been issued prior to the issue of proceedings. As I have already stated that letter was a tactical effort to expose the lack of evidence that Vivian had disclosed for his proprietary estoppel claim at that time. I note, too, that Vivian refused early disclosure in December 2022: Luke was not given access to Keith’s medical records until after the CCMC in June 2023. So, Vivian's protestations about a lack of full and early disclosure by Stephens Scown do not ring true.

It is important to make the distinction between Coodes’ requests for a limited grant for the purposes of obtaining documents and a grant ad colligenda bona: neither would have stopped time running on the Barclays loan or allowed any reduction in its balance. Coodes claims in their letter of 22 June 2023 regarding a grant for the sale of some land being made as long ago as September 2021 misdescribes that request. There were discussions between the parties about a meeting to do so, but that was much later.

Mr Knight referred to the correspondence and in particular Nalders’ letter of 2 August 2020 in which they sought an indication within 14 days of why the Will was being contested, and nothing firm was forthcoming prior to July 2022 and indeed until the Counterclaim. It is noticeable that Vivian was able to plead the counterclaim with no apparent difficulty. No Part 18 requests were issued in relation to any of the Claimant’s pleadings.

For all these reasons, I do not consider that Luke was precipitate in issuing proceedings some 2 years and 4 months after Keith’s death and over 2 years since Vivian had indicated that he had a claim. Having now heard the trial, delivered judgment and heard the arguments on the putative effect that a letter of claim might have had, I find with little hesitation that a letter of claim would have made no difference to the trajectory of the litigation and would, if anything, have delayed it further, with no prospect of settlement at that stage. Whilst there has been a breach of the protocol, I find that the frustration of the Claimant was caused largely by the inaction and failure of the Third Defendant to provide his own letter of claim.

The delay in Luke agreeing to ADR must be seen in the light of the foregoing, together with Vivian's refusal to offer early disclosure, even of the critical medical records. Furthermore, he never disclosed (i) that he had been gifted Burhos as opposed to purchasing it; (ii) the fact that he had gifted two barns to his sons, and (iii) the planning applications in relation to Burhos. This was not “cards on the table” litigation from Vivian’s perspective.

It must also be pointed out that the relevant delay was for a period from March to September 2023: a total of 6 months (or about 5 if you allow for some response time).

I fully accept what was said by Arnold LJ in Northamber Plc v Genee World Limited [2024] EWCA Civ 428 at paragraph 103, but each case turns on its own facts. Mr McKean described silence in the face of an invitation to mediate as “automatically” unreasonable by virtue of Arnold LJ’s dicta. I do not agree: Arnold LJ specifically referred to the proposition as being “a general rule”.

Mr McKean also relied on DSN v Blackpool Football Club Ltd [2020] EWHC 670 (QB) at 28 in which Griffiths J said:

The reasons given by Nalders for refusing to negotiate were the lack of prospects of success, given Coodes’ own complaints to Stephens Scown that they were not in the full picture vis a vis the estate. This is different from the alleged lack of material in relation to the letter of claim. As I have already indicated, a lack of details about the size of the estate and its debts etc. is indeed a factor that a party has to factor in in deciding the commercial realities of settling or proceeding with litigation. Nalders were not therefore unreasonable in concurring with Coodes’ position at that stage. Mr McKean stated that Stephens Scown had supplied the information two days later, but there is no correspondence to that effect, and nothing from Coodes saying that Luke’s stated reasons for not mediating had fallen away. The fact that Wright Hassall did agree to mediate in September 2023 is nothing to the point: disclosure had taken place by then.

Coodes seemed content (correctly) to allow preparation for the impending CCMC to take precedence over the suggestion of ADR (I have already noted that their letter to Nalders of 18 May 2023 was silent on ADR). I have already pointed out above that Coodes’ email of 6 June 2023 did not contain a reference to mediation or any ADR: merely to a meeting to discuss an early limited grant. As did their letter of 27 June 2023. Accordingly, there were no further silences on Nalders’ part in the face of invitations to mediate.

I have no hesitation in finding that it was perfectly reasonable for Nalders to wait until after the CCMC to consider whether mediation was appropriate at that stage. This is particularly so because Vivian had refused to disclose the evidence in support of his case, and in circumstances that he was uniquely positioned to know the evidence he had available in support of his proprietary estoppel claim, as well as the medical evidence in support of his capacity claim.

Luke instructed new solicitors in July 2023 which did bring about a change in the tone of correspondence, at least for a period, and they almost immediately started liaising with Coodes regarding a meeting to discuss a limited grant and/or a mediation (see email from Coodes to Stephens Scown dated 8 August 2023). Once they had read into the case, they agreed to mediation on 10 September 2023. I note that very little, if anything, of substance happened between the parties between June and September 2023.

I reject Mr McKean’s submission that the additional costs incurred between March and September would have rendered the mediation less likely to succeed: the CCMC was essential before mediation could proceed (because of disclosure) and very limited costs were incurred in that period in any event.

I am far from being persuaded that any alteration to the usual costs order is required as a result of Luke’s conduct, either through not issuing a letter of claim or his failure to agree to mediation prior to September 2023.

I am asked by Mr McKean to depart from Re Cutcliffe’s Estate based on the extract from Theobald set out above. However, Joanna Smith J DBE held at paragraph 27 in Leonard as follows:

In circumstances in which two relatively recent authoritative decisions have, after a review of the authorities, endorsed Re Cutcliffe’s Estate, it would have to take a very strong set of facts to depart from that authority. This is certainly not such a case, particularly when the recent encouragement has been to narrow the scope of the application of the first exception rather than broaden it (see Kostic at [18]).

In my Substantive Judgment, I did refer to there having been a familial expectation, but the context of that finding is important (I refer back to paragraph 312 set out above). It was largely based on things said and done in Betty’s lifetime (so some years before the Will was made and even further before Keith’s death) and they were largely implicit in what Keith said and did rather than positive deceit on his part. Even without Re Cutcliffe’s Estate, I would have found it impossible to apply the first exception to the instant facts. It was not incumbent upon Keith to tell his family that he had made a will, as was suggested by Mr McKean. It is still very much the case that a person does not have to justify their testamentary gifts, provided the will is otherwise lawful and the testator is of sound mind.

The real mischief that the first exception is aimed at is that behaviour of the testator which goes directly to the comprehension of the testator’s intentions, examples of which were given by Joanna Smith J as set out above. The instant facts fall far short of supporting the application of the exception: Keith went out of his way to engage professionals (solicitors) or quasi-professionals (in the form of the charity support) both in discussing and evaluating his proposed gifts and in setting them down on paper. Keith’s will was in short form and was perfectly clear.

Accordingly, I find that there is no scope for applying the first probate exception in this case, and I decline to do so.

This exception is highly fact specific, and much will therefore turn on the evidence and findings. I draw on Ms John’s helpful skeleton in this regard, for which I am grateful.

General – Vivian’s state of knowledge: Whilst Vivian was not involved in making the Will, much of the essential factual background would be known to him as Keith’s brother and given his daily presence at Tregear. Coodes were in possession of most of the relevant documents disclosed in these proceedings prior to Luke instructing solicitors in May 2021. By March 2022, Mr Clarke had had his memory jogged in relation to the attestation. The evidence of a non-Wills Act compliant attestation thereafter was fairly weak: how likely, one might ask, would it be that Dr Fairlie should recognise someone from a photograph who they met once, extremely briefly and when the focus was not on the social fact of meeting but on executing a document in the middle of a busy surgery, particularly when Dr Fairlie, like many doctors, attests to many wills over time. The fact that mediation was being suggested in March 2023 (once the information had been supplied (as per Mr McKean’s submissions) on 17 March 2023), prior to exchange of disclosure or statements, suggests that Coodes considered that their pre-issue enquiries had yielded sufficient information to form a view about the validity of the Will and to make a commercial assessment of the risks and benefits of continued litigation. As stated above, Vivian was in possession of much more information than Luke by that stage.

Testamentary capacity:The plentiful medical evidence did not suggest testamentary incapacity, as was pointed out by Nalders and hence the Notice to Admit Facts. CPR 32.18(5) provides that “If a party fails to admit a fact after service of a notice to admit facts, the court may take this into account when deciding whether to make an order as to costs.” This bolsters the case against the engagement of the second exception. Dr Series’ description of Keith has been found to be alien to the true picture, and Vivian would or should have been aware of the true picture of Keith’s acuity in the period running up to the execution of his will. In Leonard, Joanna Smith J concluded that the investigative phase had ended post-mediation notwithstanding the fact that the unsuccessful defendants had a supportive expert report. Dr Series’ personality disorder hypothesis is not only apparently unprecedented to support a finding of testamentary capacity, but it emerged at a very late stage of the proceedings. Dr Series’ theory was founded on a one-sided analysis of the evidence as he was not provided by Coodes with the witness statements on behalf of Luke at the point when he prepared his report. Vivian and his team would have known that, and to consider that reliance on his report was anything other than hostile litigation was misguided if it was the case.

Knowledge and approval: This was a professionally drawn will that, save for minor points of detail, accorded with instructions given by Keith to Ms Wright and recorded in a comparatively detailed attendance note. Vivian was in possession of the Will file long before Luke instructed solicitors. Even without prior knowledge of the meeting on 2 August 2016 when Keith went through the draft will with his executors, Peter Clarke and Patrick Evans, this was always going to be an extremely difficult ground of challenge to succeed on. The various factors cast by Vivian as suspicious did not objectively require investigation and have been emphatically rejected by the Court.

Due execution: At first blush, this may have had more mileage in that there was an apparent conflict in the evidence of Dr Fairlie and that of Peter Clarke. However, as noted, Coodes had spoken to both witnesses prior to the issue of proceedings. Dr Fairlie’s evidence, at its highest, was that he could not remember Peter Clarke being present; he has never asserted a positive recollection that the Will formalities were not observed. Coodes were also aware prior to issue that Peter Clarke, after his initial discussion with Coodes, had reflected further and was saying that the Will was executed at the surgery. Any assessment of the extent to which it was reasonable to continue to pursue this issue must factor in: (a) the strength of the presumption of due execution which is not displaced merely by lapses in memory on the part of attesting witnesses; (b) the standing of the attesting witnesses as professionals or quasi-professionals; (c) the evidence on the Will file that Ms Wright had given Mr Clarke careful instructions on execution; and (d) the attendance note of Ms Wright’s conversation with Mr Clarke on 25 August 2016. That attendance note was agreed by Dr Fairlie to refer to Keith’s visit to the surgery on the date of execution on 23 August 2016. The attendance note recorded that Mr Clarke had been present at the surgery with Keith on that day and, since Mr Clarke described Dr Fairlie’s mood, in all probability placed Mr Clarke and Dr Fairlie in the room together.

An objective assessment of the essential facts and legal principles, which were all available to Vivian pre-issue and long prior to the exchange of witness statements on this issue in the lead up to mediation, ought to have led to the realisation that this was likely to be a very difficult issue to succeed on at trial and was certainly going to be in the nature of hostile litigation. It is relevant that this exception applies to reasonable investigations: once the parties are aware of the settled positions of the attestation witnesses, time must begin to run to decide whether the investigation phase is over, and the parties need to decide whether to pursue hostile litigation.The fact that no positive case was originally pleaded by Vivian in relation to due execution (see para. 67 original Defence and Counterclaim which was in the PTR bundle at page 63 which merely put Luke to proof) is an indicator that this was not perceived as a substantial ground of challenge. It is also highly relevant that the costs incurred in dealing with this aspect of the matter are almost de minimis compared to Vivian’s other challenges to the Will.

Even if this exception applied to the due execution issue post-issue of proceedings, which I find that it does not for the reasons set out above, the only just way to apply it would be by way of an issue-based costs order because of its de minimis contribution to the costs of the case. However, I do not reach that point.

Standing back and looking at the second exception in the round, it is my judgment that the investigation period was complete by the end of August 2021 in respect of all issues save for the due attestation issue and that the period for that issue concluded soon after 1 March 2022. If there are any costs incurred by Luke in dealing with all intimated claims by Vivian before the end of August 2021, then there shall be no order for costs to that date; if there are any costs incurred by Luke in respect of the due attestation issue alone, there shall be no order as to costs to 15 March 2022.