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The First and Second Defendants’ Submissions
The First and Second Defendants’ Submissions
Mr Knight referred to the “very, very late volte face” in relation to Vivian’s opposition to a full grant which he now supports, he said, and so the purpose of his attendance at this costs and consequentials hearing was now limited largely to the incidence of the payment of the executors’ costs.
Referring to Mr McKean’s reference to there being no principled basis upon which costs could be ordered against Vivian for the executors’ costs, Mr Knight turned that back onto Mr McKean, observing that that would be the normal order in contentious litigation, and Mr McKean had cited no authority for his proposition. There was no reason why the court could not make an order against Vivian for the executors’ costs under CPR 44.2(1). There was certainly no principled reason why not, and there were three reasons why that was obviously right:
It is plainly right that the Third Defendant was the cause of the First and Second Defendant incurring costs in this litigation. Though it was the Claimant who issued proceedings, having got understandably fed up with waiting for Vivian to formulate his case, that is irrelevant: if Vivian had moved more quickly then the executors would still have been Defendants along with Luke. It is all because Vivian challenged the Will and brought a proprietary estoppel claim that the costs have been incurred.
The practical and obvious reality is that it would be Luke paying the costs if Vivian does not pay them.
In Tucker v Felton [2025] EWHC 530 (Ch), there was no contest that the losing Claimant would pay the costs of the executors (see paragraph 99). Here the executors are the executors of a valid will; in that case they were merely named executors of an (ultimately invalid) will.
In addition, Mr Knight observed that all parties had agreed the executors’ costs budget which was tantamount to agreeing that someone (the unsuccessful party) would pay them.
On the balance of the issues, Mr Knight agreed with Ms John that September 2023 was not an appropriate date for the beginning of the incidence of costs. And as regards the Spiers v English exceptions, the first exception was untenable here, Mr Knight said; and as for the second exception, the court should not encourage open-ended investigations. It was absolutely apparent that Vivian was casting around for a reason to be able to oppose the grant. He 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.
Vivian was continually finding reasons to ask more questions about, and seeking disclosure of increasingly irrelevant information and documentation whilst promising a letter of claim which never materialised, Mr Knight submitted. It was not some heretical breach of the rules said Mr Knight: it is clear that Luke just got completely fed up with waiting; he was just trying to propound a will, and the Particulars of Claim reveals the simplicity of his case: they are one-page long Mr Knight observed.