KA-2025-000017 - [2025] EWHC 2311 (KB)

The appellants are Simon Kevin Frain and Mark Ryan McKinnon. They were the defendants in the main action, contested probate proceedings involving a dispute about which of two wills of Kevin Patrick Frain (also known as Kevin Patrick Reeves (“the deceased”)) was valid. The first appellant Simon Frain is the deceased’s son; the second appellant Mark McKinnon is his grandson. The respondent is Louise Michelle Reeves, the deceased’s daughter, and the claimant in the main action. The appellants are represented by Mr Quiney KC, the respondent by Mr Marven KC. The court is grateful to counsel for their helpful submissions. As is the practice in certain costs appeals, the court sat with a costs judge. The court sat with Senior Costs Judge Rowley. The court is grateful to him for his time. The judgment remains entirely my responsibility.

Having issued proceedings in the Chancery Division, Ms Reeves asked the court to pronounce in favour of a 2014 will in solemn form of law. There had been an earlier will executed in 2012, but the 2014 will radically altered the structure and balance of the bequests, granting her 80 per cent of the £100 million estate while substantially reducing the bequests to the appellants.

A crucial issue was whether the deceased’s cognitive and literacy abilities allowed him to comprehend the 2014 will, raising questions about undue influence and true testamentary intention. The trial judge was Green J. After a lengthy trial, he upheld the validity of the 2012 will and made an order granting probate accordingly (Reeves v Drew & Ors. [2022] EWHC 159 (Ch)).

Therefore, he rejected the claimant’s case that the 2014 will which contained an “80/20 split” (as Green J termed it (para 380) in her favour reflected Kevin Frain’s true testamentary intention. This seismic shift in the bequeathing under the new will had been “tucked away at the bottom of the first page in the most bland of terms” (para 241). In consequence, for the purposes of costs, Ms Reeves is the paying party and the appellants the receiving parties. Green J decided that Ms Reeves should pay 70 per cent of the appellants’ costs on an indemnity basis, to be assessed.

An application for contempt proceedings was made against Ms Reeves and a solicitor. It was alleged that Ms Reeves knowingly made false statements. The application was refused at permission stage by Joanna Smith J in a judgment dated 19 January 2023 ([2023] EWHC 73 (Ch)).

The main claim costs claimed by the appellants are in the region of £1.3 million. The dispute in this case arises from the way in which their solicitors, the London Litigation Partnership t/a LLP Solicitors, were engaged and the action funded. The dispute centres around the terms of the letters of engagement dated 16 February 2021 and the Damages-Based Agreement (“DBA”) dated 16 February 2021 between Simon Frain and LLP Solicitors, and the letters of engagement dated 9 December 2020 and the DBA dated 16 December 2020 between Ryan McKinnon and LLP Solicitors.

At the costs hearing, the Judge held the two DBAs to be unenforceable. The DBAs purported to remunerate the legal representatives by granting them specified percentages. This was set out at Clause 10.1 of the DBAs:

“If you win you agree to pay us [10% for Simon Reeves; 24% for Mark McKinnon] of any money and any non-monetary award or settlement received.”

His decision came after a two-day hearing before him on 6-7 November 2024. The focus was on the meaning and effect of the DBAs when read with the relevant statutory framework, which includes 58AA of the Courts and Legal Services Act 1990 (“the Act”) and the Damages-Based Agreements Regulations 2013 (SI 2013/609) (“the Regulations”) (together, “the DBA Rules”). The issues, facts and decision in the main claim are relevant to the costs appeal determination. It is of great advantage that the background facts have been set out in detail in Green J’s judgment, and I draw on his careful exposition with gratitude.