Chloe Brennan v Anthony Francis Prior and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Snowden |
| Judgment Date | 28 October 2015 |
| Neutral Citation | [2015] EWHC 3082 (Ch) |
| Court | Chancery Division |
| Date | 28 October 2015 |
| Docket Number | Case No: HC-2011-000047 |
[2015] EWHC 3082 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
7 Rolls Building, Fetter Lane,
London, EC4A 1NL
Mr Justice Snowden
Case No: HC-2011-000047
The Claimant appeared in person Luke Harris (instructed by Russell-Cooke LLP) for the Third to Sixth Defendants
The First and Second Defendants did not appear and were not represented
Hearing date: 22 July 2015
Introduction
This is an application by the Third to Sixth Defendants under CPR 40.12 (the "slip rule") seeking the clarification or amendment of an order for costs contained in an order ("the Order") made on 26 September 2013 by Mr. Mark Herbert QC (sitting as a Deputy Judge of the High Court) at the end of a trial of a probate action concerning the will of Francois Devillebichot ("the deceased"). The essential question is whether the Order provided that the costs to be recovered by the Third to Sixth Defendants from the Claimant ("Mrs. Brennan") should be limited by reference to the amount of the pecuniary legacy left to Mrs. Brennan under the will.
Background facts
The background to the case appears from the reserved judgment of Mr. Herbert QC: [2013] EWHC 2867 (Ch). In short, the deceased died on 3 March 2011 leaving a homemade will which he had executed in hospital on 19 February 2011. The First and Second Defendants were witnesses to the will and its executor and substitute executor respectively ("the Executors"). Under the will the deceased gave his daughter, Mrs. Brennan, a pecuniary legacy of £100,000; he gave the Fourth Defendant, his sister, his studio flat in France; and he divided his residuary estate between his siblings (the Third to Sixth Defendants) equally.
Mrs. Brennan challenged the will on a number of grounds, including lack of capacity, fraud and undue influence on the part of the Defendants, but it was upheld by the Deputy Judge. After handing down his Judgment on 26 September 2013, Mr. Herbert QC heard argument on costs. Both the Executors and the Third to Sixth Defendants (against all of whom personal allegations of misconduct had been made) sought orders for costs against Mrs. Brennan on the indemnity basis rather than simply having their costs paid out of the estate. The Deputy Judge was told during that argument that the costs of the Executors were in the region of £87,000, and the costs of the Third to Sixth Defendants were considerably more.
In the course of argument, in addition to seeking costs orders against Mrs. Brennan, counsel for the Executors and counsel for the Third to Sixth Defendants both submitted that such costs should first be ordered to be paid out of Mrs. Brennan's legacy, with the costs of the Executors taking priority over the costs of the Third to Sixth Defendants in that respect. Counsel for the Executors also sought a payment on account of £50,000. Counsel for the Third to Sixth Defendants did not oppose that and concluded,
"…so that would mean, I suppose, that £50,000 of the £100,000 was appropriated to that payment on account and then [the Executors] would be able to charge the balance of [£37,000] out of the legacy and there would be a little bit left over for us out of the legacy, and then we will just have to do our best as to the balance…."
(my emphasis)
Having heard submissions from Mrs. Brennan, the Deputy Judge gave an ex tempore judgment. He stated that he had to decide whether Mrs. Brennan should be ordered to pay some or all of the Defendants' costs, and if so, on what basis. He then stated,
"3. Very often in probate cases an unsuccessful opponent to a will can have an order that the costs should be paid out of the estate, but those are cases in which there is no real antagonistic litigation. In the present case Mrs. Brennan's case has been to attack the Will on four grounds: lack of due execution; lack of testamentary capacity; lack of knowledge and approval; and undue influence.
4. In the end none of those attacks was successful and, in my judgment, only the third (knowledge and approval) had any chance of success. The litigation has been conducted aggressively on her side, partly in the form of correspondence, emails and such like from her husband. Of the emails I have seen, one of them I commented on in the judgment, another one I was shown today, which contains extremely aggressive, offensive and damaging attacks, and Mrs. Brennan, although she is a different person from her husband, she has not, until today, as I gather, withdrawn those damaging and unpleasant attacks.
5. This is a case where I feel that at least some of the costs should be ordered to be borne by Mrs. Brennan and there are two sets of costs in question, because the first two defendants are nominated as the executors and they have in fact taken a very neutral role in the action, but they were obliged … to appear as parties … and put themselves at risk as to costs. They have in turn explained their position … to Mrs. Brennan that if she insists on making allegations essentially of dishonesty against those two parties, they will be seeking to make her liable in costs…
6. Normally speaking, executors, especially executors of a will which is to be admitted to probate, will be entitled to their costs on the indemnity basis out of the estate, but in this case what I am proposing to do is to order Mrs. Brennan to pay their costs on the standard basis down to 22 August 2012 and to pay their costs on the indemnity basis from that date."
Having dealt with the costs of the Executors, Mr. Herbert QC then turned to the position of the Third to Sixth Defendants. He set out the relevant history of the litigation between Mrs. Brennan and the Third to Sixth Defendants, and then said,
"17. In deciding on the costs order to make in regard to the Defendants other than the Executors, I have to weigh two things in my mind. One is that this is a case in which, in my judgment, it is appropriate to make Mrs. Brennan pay the costs. I acknowledge that the issue of knowledge and approval could be regarded as a separate one… but in this case the way Mrs. Brennan has presented her claim makes it difficult to distinguish that issue from the rest…
18. I think that … taking everything together what I shall do with these costs as well is to divide the matter in terms of timing and to say that she will be ordered to pay costs on the standard basis until … 30 May 2012, and indemnity costs after that date …"
Mr. Herbert QC then concluded,
"19. …Taking it all together, what I am going to do is to divide the costs in two different ways. For the [Executors] the cut-off date is 22 August 2012 and for the other defendants it is 30 May 2012, and in each case I am ordering the costs on the standard basis before the relevant date and [on] the indemnity basis after the relevant date. This is essentially to be paid in the first instance out of Mrs. Brennan's legacy and I fear that that legacy will be insufficient to meet those costs in full, but there will, of course, have to be an assessment and it is possible that the costs will be reduced below that amount.
20. I was asked to order an interim payment of £50,000 to [the Executors] to be made as an interim payment out of that legacy, and … I am prepared to go along with that figure."
After the Deputy Judge had given that judgment on costs, there was a further dialogue as to the precise form of order, and the following exchange took place:
"THE DEPUTY JUDGE: …Is there anything else, Mrs. Brennan? Do you want some time to collect yourself?
MRS. BRENNAN: I don't have the money to pay the bill and I'm worried about losing the home and I don't think that's what my father wished for. Or for his grandchildren. I haven't even got enough equity to pay what you're asking.
THE DEPUTY JUDGE: You are not telling me anything I did not already appreciate, Mrs. Brennan. The fact is that the way that … litigation works is …
MRS. BRENNAN: I understand. I've accepted your judgment. I've accepted it. I just am scared of losing my home."
The Order
The Order was then drawn up and agreed between the respective Counsel for the Defendants, and was signed by the Deputy Judge before being sealed. The relevant provisions as regards costs were as follows:-
"2. With regard to the First and Second Defendants' costs of the Claim and Counterclaim:
(1) The Claimant shall pay the First and Second Defendants' costs of the Claim and Counterclaim. Such costs are to be subject to detailed assessment on the standard basis until 22 August 2012 and thereafter on the indemnity basis, if not agreed.
(2) The Claimant shall pay the First and Second Defendants on account the sum of £50,000 within 28 days.
(3) Such costs and such costs on account shall (if not previously paid) be payable out of the Claimant's pecuniary legacy prior to the distribution of such legacy to her.
(4) Insofar as the First and Second Defendant' costs [are] not recovered by the First and Second Defendants from the Claimant (whether out of her pecuniary legacy or otherwise) those costs shall be raised and paid out of the Testator's residuary estate, such costs to [be] subject to a detailed assessment on the indemnity basis if not agreed."
3. With regard to the Third to Sixth Defendants' costs of the Claim and Counterclaim:
(1) The Claimant shall pay the Third to Sixth Defendants' costs of the Claim and Counterclaim. Such costs are to be subject to detailed assessment on the standard basis until 30 May 2012 and thereafter on the indemnity basis, if not agreed.
(2) Such costs (if not previously paid) shall be payable out of the Claimant's pecuniary legacy (or so much of...
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