PT-2023-BRS-000112 - [2025] EWHC 2829 (Ch)

The claimant further asks that the first defendant pay her costs on the indemnity basis. The test for such an award is well known. It is whether the case is “out of the norm”. I set out what I thought were the relevant principles in a case called De Sena v Notaro [2020] EWHC 1366 (Ch).[9]-[14]. But there are many other recent authorities on the point. The claimant relies on three main matters. The first is categorising the first defendant’s case as “speculative, weak, opportunistic or thin”. All the evidence which the first defendant had in her possession before the claim was issued pointed in favour of the validity of the will. There was none pointing in favour of its invalidity. The first defendant challenged the will on four separate bases, namely capacity, want of knowledge and approval, undue influence (for which there was simply no evidence whatever) and the absence of the original will. The first defendant did not even seek to obtain evidence supporting her claim of incapacity until more than a year after the claim had been issued. The evidence that she did obtain was also against her case, including the expert report on capacity. This was indeed an entirely speculative and objectively weak case.

The second point is that the first defendant effectively conceded the case only on the day before trial, and then by way of a skeleton argument that was overdue. By that time, the claimant had flown all the way from Australia to give evidence at the trial. This should never have happened. Quite apart from the fact that the skeleton argument should have been put in on time, so that the judge would have had the opportunity at least to consider it before the trial began, on the material available, the decision to concede the various points should have been taken months, if not years before. The first defendant was legally represented, by solicitors, from October 2024, but the fact that she was a litigant in person before that cannot excuse her in this respect. Subject to limited exceptions which do not apply in the present case, the procedural rules in the English courts are the same for litigants in person as they are for represented litigants: Barton v Wright Hassall LLP [2018] 1 WLR 1119, SC. Representing yourself in court is a privilege given by English law to litigants in our courts (unlike the law in some other countries, where litigants are obliged to retain lawyers), but it does not confer any exemption from the rules.

Thirdly, the claimant made offer after offer to settle the litigation, all of which the first defendant refused. In fact, the offers were flawed, because they involved the first defendant’s discontinuing her counterclaim. In probate claims, however, discontinuance is not the act of a party, but is ordered by the court: CPR rule 57.11. The methods of settling a probate claim are set out in CPR PD 57, paragraph 6.1. Despite the flaw in the claimant’s offers, if the first defendant had otherwise been prepared to accept one of them, a means would have been found to implement it. I accept that the first defendant made two offers, but neither of these made any sufficient provision for the claimant’s costs, and the first did not grapple with the problem of Richard’s capacity. I regard the first defendant’s conduct overall as grossly unreasonable, taking more than eight years to decide that there was in fact no basis for challenging the validity of the deceased’s will. Overall, I conclude that this is a case where the first defendant’s conduct was well outside the norm, and it is entirely appropriate – indeed cries out – for an award of costs against her on the indemnity basis.