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

Mr McKean accepted that the Claimant had been the successful party, but did not accept that the First and Second Defendants had been successful. He submitted that there were three broad grounds for departing from the general rule in CPR Part 44 that costs follow the event. These were:

Mr McKean did not go so far as to seek an order for costs against Luke but sought an order that there be no order for costs until September 2023. This was the simplest way to balance Part 44 with these three elements of the case, he said. He also submitted that Luke’s Part 36 offer made in January 2024 was not a valid Part 36 Offer and/or it was not a genuine offer to settle the matter. Finally, Mr McKean submitted that there was no principled basis for the First and Second Defendants recovering their litigation costs from Vivian. He also made submissions on the appropriate payment on account and applied for permission to appeal. I deal with the latter in a separate short judgment.

Mr McKean accepted that the relevant pre-action protocol was the generally applicable one. He emphasised the purpose of the reference to the need for exchange of information in advance of proceedings and that litigation should be regarded as the last resort. He submitted that Vivian had been constructive and amicable throughout the pre-action phase.

Mr McKean took me through the correspondence from the first intimation of a claim by Vivian on 30 June 2020 through the Larke v Nugus request made on 16 July 2020 to the repeated requests for more documentation and information made on Vivian’s behalf, including those relating to the Barclays Bank loan and the Adult Social Care files. In their email of 24 August 2021, Coodes wrote:

In response to criticism from Ms John in her submissions, Mr McKean submitted that these two classes of disclosure were not irrelevant to the letter of claim because the loan lay at the heart of the ‘knowledge and approval’ claim, i.e. the residue vs. the assets situation. And the morphine levels suggested that Keith was unable to deal with money and understand the nature of the estate.

He pointed out that Vivian was trying to formulate a letter of claim from the beginning but was frustrated by a lack of cooperation from Stephens Scown, solicitors for the executors.

On 27 September 2021, Mr McKean pointed out that Coodes had suggested that a limited grant be obtained for the purposes of obtaining documentation and made further requests of Stephens Scown. On 7 December 2021, Coodes made five further requests for information all of which were necessary before drafting a letter of claim, he said:

They wrote to Nalders on the same day stating that they would not remove the Caveat pending the claim and would put in an Appearance if a valid Warning was entered. Nalders could expect a letter of claim in 6-8 weeks they said.

By 28 February 2022, Coodes stated that they were still considering their position regarding the disproportionate use of resources to apply for a limited grant.

It was pointed out by Mr McKean that Mr Clarke’s first account of the witnessing of the Will (suggesting non-compliance with the Wills Act) was provided by him on 15 February 2022.

Mr McKean submitted that a letter from Stephens Scown dated 4 March 2022 was “finally” a reply to Coodes’ letter of January 2021. In order to assess the validity of that characterisation, it is worth setting some of it out:

Against that background, Mr McKean submitted that the fact that Luke issued proceedings on 29 July 2022 without so much as a letter of warning let alone a letter of claim was a brazen breach of the Practice Direction for pre-action conduct. Paragraphs 12 and 13 of Mr McKean’s skeleton argument summarised the position thus (I have corrected an apparent transposition of D3 and C throughout):

For reasons that will become apparent, that is a miscategorisation of that position, not least because Vivian had full access to Betty’s will file as the executor of her estate, although Mr McKean did say, rather surprisingly, that it was nevertheless the responsibility of the First and Second Defendants to obtain it. The letter from Nalders was pointing out that Vivian had disclosed no evidence to support his proprietary estoppel claim.

Mr McKean criticised Stephens Scown’s will file as disclosing no reason for Keith’s failure to provide for his family in the Will, and submitted that the mortgage file and business plan were also important; and that just because the full hospital and social care records were not obtained even for the trial, it did not mean that it was wrong to try and get them in advance. Mr McKean denied that Betty’s will file was only relevant to the proprietary estoppel claim because the resentment said to have been felt by Keith was relevant to the contents of the Will, and the failure to give effect to his expected bequests to family members gave rise to suspicions.

Mr McKean went on to submit that the letter of 13 October 2022 from Nalders in response to the Counterclaim was exactly why a letter of claim should have been issued by Luke before commencing proceedings. As I have already indicated, I do not agree with that submission: that 13 October letter was a letter pointing out the weaknesses in Vivian’s case on proprietary estoppel due to a lack of evidence of any promises etc. Mr McKean went to submit that, had there been such a letter of claim from Luke, it would have led to an identification of the missing information and documentation, and in turn to a concerted effort by both parties to fill those gaps and thence to a mediation.

The case of Merial Ltd v Sankyo Co Ltd [2004] EWHC 3077 (Pat), in which Mann J held that the absence of a Pre-Action Protocol Letter which would have had no effect on early settlement did not result in a costs penalty for a claimant, did not create a general rule, submitted Mr McKean. In that case there had been no defence filed and further, here, there was the possibility of mediation to boot.

Mr McKean described the obligation to mediate as trite. He referred me to a summary of the law by Arnold LJ in Northamber Plc v Genee World Limited [2024] EWCA Civ 428 at paragraph 103:

The first invitation from Vivian for Luke to mediate was on the 16 March 2023. Luke’s was response was on 16 March 2023:

Mr McKean described these as unreasonable reasons to refuse. The relevant information was in fact supplied by Stephens Scown on 17 March 2023, he said (though I was not directed to any correspondence to this effect and I can identify none in the correspondence bundle; the letter said to have been “finally” replying to the January 2021 letter was dated 4 March 2022). As regards the suggested low prospects of success, Mr McKean submitted that the basis for this reason is belied by the fact that Luke did in fact agree to mediate in September of 2023.

Mr McKean took me to Coodes’ letter of 2 May 2023 which he submitted showed that Vivian was doing the hard work towards mediation and constructive cooperation: That was a letter dealing with CCMC directions and said, inter alia:

In their reply, Mr McKean pointed out that Nalders did not address these ADR proposals which is, by definition, he said, unreasonable. He passed over Coodes’ letter of 18 May 2023 in reply to Nalders’ reply which itself does not raise the lack of a response to the ADR proposal, but continues the discussions regarding CCMC directions and comments again on a long-running spat between these parties that Luke had filed his Defence to Counterclaim 1 day late.

Having got the CCMC out of the way, Coodes write again on 6 June 2023 referring to a proposed meeting to discuss which land may be sold under a limited grant to allow for the Barclays loan to be reduced or discharged. That was not an invitation to mediate as Mr McKean sought to categorise it in his submissions, though I accept it was an attempt at constructive discussions to narrow the issues at the same time. In this email (pursuant to the CCMC Order) Coodes gave Nalders access to Keith’s medical records by way of a link. Significantly, this was the first time that Luke had had access to those records, Coodes having declined to give early disclosure until the CCMC.

Nalders’ response on 8 June 2023 was that, having reviewed the medical records, they could see no basis for Vivian’s claim for Keith’s lack of testamentary capacity and enclosed a Notice to Admit Facts.

On 22 June 2023, Coodes wrote to Stephens Scown having reviewed other files disclosed pursuant to the agreed CCMC order. They sought to portray themselves as the proposers of the limited grant for sale of land by way of a letter dated 27 September 2021 (whereas they had there in fact proposed a limited grant to obtain documents and it had been Stephens Scown in January 2023 who had proposed the land sale). They concluded:

Mr McKean submitted that Coodes were again chasing for dates for ADR in their letter of 27 June 2023. That letter was in fact chasing for dates to meet to discuss the limited grant and the land that might be sold pursuant to it. There was no mention of mediation or ADR going further than that.

In September 2023, Wright Hassall (who acted for Luke from July 2023) agreed to a mediation.

Mr McKean submitted that Nalders simply ignored the requests for ADR which were inherently unreasonable. Furthermore, he said, Luke’s reason for refusing to mediate earlier was a lack of documentation. They can’t have it both ways, he submitted: if Luke was criticising Vivian for failing to provide a letter of claim which led to him issuing proceedings in frustration, then there must have been sufficient documentation for a mediation. And vice versa: if there was insufficient documentation, then Vivian cannot be criticised for failing to provide a letter of claim and Luke issued prematurely, the investigation phase having gone on until at least September 2023.

Dealing with the fact that the mediation in November 2023 had been unsuccessful, Mr McKean submitted that it was “well known” that delays in mediation give rise to an increase in costs which in turn make mediation less likely to succeed. Accordingly, the failure of the mediation in November 2023 is no guide to what might have happened in March or April 2023, he said.

Whichever way one looks at it, submitted Mr McKean, there must be some sanction imposed against Luke in respect of his failure to agree to mediate until September 2023.

Mr McKean submitted that both probate exceptions apply to this case.

From Vivian’s perspective, Mr McKean submitted, the question is whether he reasonably believed that the farm would be left to him, such belief having been induced and encouraged by Keith during his lifetime. He had never told him otherwise, and there had never been a complete falling out between them. Those matters, coupled with the fact that the two parts of Tregear were enmeshed, is what caused the litigation, submitted Mr McKean. It was only in January 2024 when Ms Wright’s witness statement was served did Vivian have any reason to doubt his belief.

Mr McKean submitted that there was no principle to be derived from In Re Cutcliffe's Estate [1959] P. 6 such that mere conduct or promises made by the testator which mislead the disappointed beneficiary and inspired false hopes was outside the range of possible circumstances which would lead to this probate exception. The passage in that case by Hodson LJ was made per incuriam, the Court having not had two earlier authorities cited to it. Furthermore, it was not part of the substance of the judgment, and it was not a case containing the sort of promises that were made here, he said. The behaviour of the testator said to be responsible for the false belief by the disappointed beneficiary was a letter and an outburst, he said, but the real cause of the litigation was found by the judge at first instance and confirmed by the Court of Appeal was the witness evidence of the failed litigant.

Mr McKean referred me to Theobald on Wills (19^th Ed.)

Mr McKean invited me to depart from Re Cutcliffe’s Estate. He submitted that the exception can still apply to familial expectations raised by the testator by a number of factors giving rise to confusion and suspicion in this case: (i) the intermeshing of the land; (ii) confusion and uncertainty caused by Keith’s promises; (iii) the family assumption that I had found at paragraph 312 of the Substantive Judgment; (iv) Keith had never disabused Vivian and the family of these beliefs nor even told them of a new will and (v) Keith and Vivian had never fallen out and Keith had even asked Adam Care to look after the large white pigs he had expected to inherit. Mr McKean concluded that this was a case in line with Mitchell v Gard (1863) 3 Sw &Tr 275 (cited in Kostic @ 8):

“If the fault lies at the door of the testator, his testamentary papers being surrounded with confusion or uncertainty in law or fact, it is just that the costs of ascertaining his will should be defrayed by his estate.”

I set out paragraph 312 of the Substantive Judgment for ease of reference:

“312.

The worst that can be said against Keith is that he did not live up to expectations that he had allowed to develop within the family. However, I have found that such statements as he made were based on his then current intention to leave the farm within the family, which was probably true. He had never made assurances of sufficient seriousness and commitment to Vivian that, objectively judging his subsequent behaviour, it could be regarded as unconscionable to renege from. Even to the extent that he had encouraged Vivian to believe until 2013 that he would be leaving his share of the farm to him or his sons, (a) he never repeated such assurances after 2013 but (b) much more importantly, Vivian suffered no detriment by relying on that expectation being met, save for the sheer disappointment of Tregear not remaining in the family. I am prepared to accept for these purposes that that disappointment is acute and felt by Adam as well as Vivian and indeed Valerie. However, Vivian cannot point convincingly to anything that he would have done differently or refrained from doing, to his detriment in either case, had he known that Keith would not fulfil the familial expectation that Tregear would remain in the family.”

2.

Reasonable Grounds for Investigation

Mr McKean submitted that this exception arises out of a combination of Mr Clarke’s initial evidence that the attestation witnesses had not been in the same room when the Will was signed which was later changed, combined with Dr Fairlie’s evidence to the same effect which was only doubted after his cross-examination. When that is added to the large doses of morphine and Keith’s contradictions of his promises together with the gaps in the Will file, it was only in January 2024 with Ms Wright’s witness statement that the investigation phase ended, Mr McKean submitted. However, Vivian was content for the “no order as to costs” to only run to September 2023, dovetailing with the conduct and mediation point.

Wright Hassall made what purported to be a Part 36 offer on 15 January 2024. It contained a proposal for two fields to be transferred to Vivian along with two of Keith’s three tractors plus a sum of £20,000 plus the obligation for Vivian to pay Luke’s costs on the standard basis if not agreed.

Mr McKean said that this was confusing because it was both a Claimant’s and a Defendant's offer because of the Counterclaim. He said that there was so much missing from it so as to render it a nullity, certainly to render it a failure as a Part 36 offer. There was no reference to the claim succeeding or being dismissed; or the Defence succeeding or being dismissed; it is silent on the Will being admitted in solemn form; it doesn’t deal with the claim for intestacy or a variation of the Will. Furthermore, only two of the three tractors were disposed of and there was no suggestion as to whom the third would go to.

Mr McKean asked the rhetorical question of how any party could have sued on it? It was so uncertain and lacking in detail, he said. He relied on dicta from Newey LJ in Adams v Options UK Personal Pensions LLP [2021] EWCA Civ 1188 at 13:

Here, Luke was offering property that was not his (it was the executors’) and was unlikely to ever be his because of the bank’s charge, Mr McKean submitted. Accepting that Vivian himself had made offers involving a division of Keith’s share of Tregear (despite the land belonging to the executors at the time), Mr McKean distinguished his position by stating that Vivian had made it clear that he was in a position to raise funds to clear the bank’s charge.

Even if this was a valid Part 36 offer, these factors rendered it otherwise than a genuine attempt to settle the case, Mr McKean submitted.

Even if he was wrong on all of that, Mr McKean submitted that the conduct and mediation points should be borne in mind when the Court was considering the Part 36.17 consequences. A 10% uplift would be way too punitive, he said. He accepted that Coodes had never raised these points when the offer had been made, although they had suggested it was incapable of acceptance albeit for different reasons.