PT-2025-000104 - [2025] EWHC 2461 (Ch)

In this case there were proper arguments to be made whether the Will should be construed in the manner argued for by the claimant or that argued for by the first, second and third defendants.

I do not accept Mr Curry’s contention that if the only construction question to be resolved is as between rival beneficiaries to whom the fund will fall to be distributed that that means the case becomes a Buckton (3) case. In the passage I have set out from Buckton Kekewich J makes express reference to ascertaining “the interests of the beneficiaries.” In Harrison-Mills Sir Timothy Lloyd’s reference to the true construction of the document was not limited in the way Mr Curry argues. In Lane v Lane the position was very similar to the present case, although here it is the claimant personal representative which has brought the claim for directions and the rival beneficiaries which have defended and advanced the contrary argument. It is also instructive that the example given of a Buckton (3) case in Lewin is one that would arise only after a distribution had occurred.

In my judgment the correct reading of all the textbooks and the cases to which I have referred is that a construction question, including as to those among whom the fund falls to be distributed, is not ordinarily to be treated as a hostile claim within Buckton (3).

There is no neutral trustee in this case and in order for the construction question to be resolved the claimant, which is administrator and beneficiary, has brought the question before the court. Accordingly this is a Buckton (1) or (2) case.

That a case is a Buckton (1) or (2) case does not mean that there might not be circumstances in which the party losing the construction argument would be ordered to pay costs. If the losing party had acted unreasonably or improperly or caused the other party to incur unnecessary costs an adversarial costs order might be made.

I have read the correspondence passing between the parties and do not conclude that there was unreasonable conduct of this litigation by either side. At an early stage the claimant took advice from counsel and was advised that there was at least a proper argument that the estate should be divided in the manner for which the claimant contended at the hearing. Although initially the claimant’s position was that counsel’s opinion was obtained in its capacity as administrator, the claimant later claimed to withhold the opinion from the other parties on the ground that it was privileged and had been obtained for the claimant’s own benefit. The claimant did however set out the basis for its position in a letter dated 27 August 2024, to which the first second and third defendants’ solicitors responded in a letter of 11 December 2024. The exchanges between the parties were robust, but not in my judgment unreasonable or improper and I cannot identify conduct by the claimant which can be said to have increased the costs of the first, second and third defendants.

Just because the claimant advanced a line of argument based on the case of Berry v IBS-STL (UK) Ltd [2012] EWHC 666which I concluded was not of assistance does not mean that I should conclude the claimant’s litigation conduct was improper or unreasonable.

In my judgment, although I have determined the construction question the other way, the terms of the Will and the circumstances that had occurred mean that the claimant’s position was not unarguable.

I conclude that this claim for the court’s determination of a construction question falls within Buckton (1) (since it is the administrator which has brought the claim), or, if I am wrong about that, it falls within Buckton (2) (as the administrator is also a beneficiary) but either way that the correct order is that each of the claimant and the first, second and third defendants should have their costs out of the estate on the indemnity basis.