PT-2024-BRS-000056 - [2025] EWHC 2325 (Ch)

I consider first joinder of the respondent as a costs-only party. I state at the outset that the first defendant is neutral on this question. It is one between the claimants and the respondent. The initial problem that confronts me is that the claimants have not yet made any application against the respondent under section 51 of the 1981 Act. I assume that this is because no (judicial) decision has yet been made as to whether the claimants should succeed in their probate/rectification claim. Indeed, it is difficult to think of circumstances in which a costs order against the respondent and in the claimants’ favour would be made before that decision were reached. That being the case, the question that arises is whether I should join the respondent as a cost-only party to the claim to facilitate the making of such an application in the future.

The claimants say that I should, because it will give the respondent the opportunity to defend its position, or to choose not to do so at this stage, but in any event to be involved in settlement discussions. To my mind, this rather puts the cart before the horse. The first thing to decide is whether to exercise the summary jurisdiction under section 51 at all. In doing so, the court must ask itself “whether it is appropriate to adopt a summary procedure of the kind envisaged in the authorities”. And this depends on whether the non-party “was so closely involved in the litigation that there was no injustice in adopting a summary procedure for dealing with the [section 51] application and holding [the non-party] bound by the findings of fact made by the judge in the main action”.

If the summary jurisdiction is appropriate, it will be because it is not unjust to hold the respondent “bound by the findings of fact made by the judge in the main action”. The summary procedure will then proceed on the basis of the facts as already found. It will not be a question of the respondent seeking to defend itself against allegations of negligence as though a negligence claim were being defended. I was referred to the cases of Re Bimson [2010] EWHC 3679 (Ch), Gerling v Gerling [2011] WTLR 1029 (Ch), and Pead v Prostate Cancer UK [2023] EWHC 3224 (Ch). In each of these cases, non-party costs orders were made against solicitors who had made mistakes in drafting wills. But they were all cases in which the solicitors did not resist being joined for the purposes of making a non-party costs order against them. Indeed, in at least one of them the solicitors agreed to the non-party costs order. And, in Marley v Rawlings (No 2) [2015] AC 157, SC, the insurer of solicitors who had caused wills to be defectively executed had required the disappointed beneficiary to bring proceedings to test the validity of the will but at the insurer’s expense.

This case is very different. The will writers have not accepted liability for negligence, and have not agreed to an order against them under section 51. If this probate/rectification claim were tried out and the claimants were unsuccessful, it would simply not be appropriate to engage the summary procedure provided for by section 51, so long as the respondent resisted liability. That could only be determined after a trial of the negligence claim, including the important questions of causation and quantum of loss. And, if it would not be appropriate to engage the summary procedure after the conclusion of this claim, it is even less appropriate to do so before that conclusion.