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

Perhaps less well known are the special rules that apply to probate cases. These are sometimes referred to as the first and second rules in Spiers v English [1907] P 122, 123, although they date back long before 1907. In the recent decision in Leonard v Leonard [2024] EWHC 979 (Ch), Joanna Smith J referred to them as “exceptions”. She said:

“12.

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) and Perrins v Holland [2009] EWHC 2556 (Ch).

13.

The exceptions ‘allow good cause to be shewn why costs should not follow the event’ and require the court to ask:

i)

whether the litigation was caused by the testator or a beneficiary. If so, the court may order the unsuccessful party’s costs to be ordered out of the estate;

ii)

whether the circumstances, including the knowledge and means of knowledge of the opposing party, led reasonably to an investigation of the matter. If so, the court may make no order as to costs.

14.

I shall return to the specific circumstances in which the exceptions apply later in this judgment, but for present purposes I draw the following propositions (which I did not understand to be controversial) from the cases as to the rationale for, and general approach to be taken to, the exceptions:

i)

the exceptions as formulated were ‘designed to strike a balance between two principles of high public importance’, the first being that ‘parties should not be tempted into fruitless litigation by the knowledge that their costs will be defrayed by others’, and the other being that ‘doubtful wills should not pass easily into proof by reason of the cost of opposing them” (Kostic at [10]);

ii)

since the advent of the CPR, the exercise of the Court’s discretion is governed by the CPR, but ‘the considerations of policy and fairness which underlie the two exceptions remain as valid today as they were before the introduction of the CPR’ (Kostic at [4]);

iii)

the exceptions are intended as ‘guidelines, not straitjackets, and their application will depend on the facts of the particular case’ (Kostic at [6]);

iv)

a positive case premised on one or both of the exceptions must be made out before the court will depart from the general rule (see Kostic at [6] and Perrins v Holland at [3]). It is necessary to make out a ‘very strong case on [the] facts’ if an unsuccessful litigant is to get his or her costs out of the estate (under the first exception) (see Re Plant Deceased [1926] P 139 per Scrutton LJ at 152; cited in Kostic at [17]);

v)

in respect of the first exception, ‘the trend of more recent authorities has been to encourage a careful scrutiny of any case in which the first exception is said to apply, and to narrow rather than extend the circumstances in which it will be held to be engaged’ (Kostic at [21]). This narrowing of the scope of the first exception (reiterated by Henderson LJ in Royal National Institution for Deaf People v Turner [2017] EWCA Civ 385 at [17]) is a function of the fact that, firstly, nowadays less importance is attached to the independent powers of the court to investigate the circumstances in which a will was executed than was the case in Victorian times; and secondly, the courts are increasingly alert to the dangers of encouraging litigation and discouraging the settlement of doubtful claims at an early stage, if costs are allowed out of the estate to the unsuccessful party (Kostic at [21]);

vi)

however, the same narrowing of scope does not apply to the second exception because ‘there is … still a public interest that where reasonable suspicions are raised about the validity of wills they should be proved in solemn form’ (see Perrins v Holland at [17]);

vii)

even where one or both of the probate exceptions applies, the point may be reached where the litigation becomes ordinary hostile litigation, from which point the normal rule entitling the successful party to an order for costs comes into effect (see Walters v Smee [2008] EWHC 2902 (Ch) per HHJ Purle QC at [8]).

Later in her judgment, Joanna Smith J dealt with the two “exceptions” in more detail. I need not deal here with the first exception, as the first defendant did not suggest that it applied. As to the second exception, the judge said this:

“29.

The second exception arises where, even though the testator has not been to blame for what has occurred, ‘if there be sufficient and reasonable ground, looking to the knowledge and means of knowledge of the opposing party, to question…the execution of the will or the capacity of the testator … the losing party may properly be relieved from the costs of his successful opponent’ (Kostic at [8] citing Mitchell v Gard). The reasonableness of the conduct of the unsuccessful proponent of the will is important (see Goodwin v Avison [2021] EWHC 2356 (Ch) at [39]). Thus, where the unsuccessful proponents of a will have ‘taken a view and acted upon it, in circumstances where they stood to benefit if the will was upheld’, there is nothing to warrant a departure from the general rule that costs should follow the event (Kostic at [15] citing Twist v Tye). The second exception is not an all-or-nothing principle – ‘[i]t may be that an investigation was justified at the outset but that as the case progressed the issues became clearer and, from some point later on, the normal rule that costs follow the event should apply’ (Boult v Rees [2023] EWHC 972 (Ch) per Zacaroli J at [2]).

30.

There was some debate between the parties both at the hearing and in their subsequent notes, as to the extent to which the application of the exceptions was ‘unusual’ as the Claimants submit, or ‘a matter of routine’ as the Defendants submit. But I consider this to be a somewhat arid debate which is of no real practical assistance. The question for me is whether one or both of the exceptions applies on the facts of this case. I am not persuaded by the Claimants’ submissions that the second exception can never be engaged, save in very exceptional circumstances, in a case where a will has been held invalid on grounds of want of knowledge and approval or capacity. The research carried out by the parties has established that there are cases in which it has been applied when a will has been held to be invalid on other grounds and I can see no good reason for disapplying the exception to all cases involving a finding of invalidity on grounds of want of knowledge and approval or capacity. I bear in mind that, as I have already said, the second exception is not the subject of an accepted ‘narrowing’ of scope.

31.

Furthermore, I agree with the Defendants that there is no principled reason to draw a distinction between unsuccessful challengers of a will and unsuccessful proponents and I can detect no such reason in the cases. In Smith v Springford [2007] EWHC 3446 (Ch) at [24], Norris J made it clear that ‘[w]hilst it is true that an Executor is not obliged to propound a will…it is nonetheless the case that an Executor is prima facie entitled to propound the will in which he is named as Executor’.

32.

If an analysis of the authorities identified by the parties after the hearing tells me anything, it is that every case must be considered on its own facts … ”

As I say, the first defendant did not suggest that the first rule in Spiers v English applied, but did submit that the second rule applied. In other words, I was being invited to make no order as to costs as between the claimant and the first defendant, on the basis that the circumstances, including the knowledge and means of knowledge of the first defendant, led reasonably to an investigation of the matter.