Karen Pegler v Timothy Bruce McDonald
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 07 October 2022 |
| Neutral Citation | [2022] EWHC 2505 (Ch) |
| Docket Number | Case No: PT-2021-BRS-000049 |
| Court | Chancery Division |
In the Matter of the Estate of Clive McDonald (Deceased)
And in the Matter of Section 116 of the Senior Courts Act 1981 and Section 50 of the Administration of Justice Act 1985
[2022] EWHC 2505 (Ch)
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: PT-2021-BRS-000049
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURT IN BRISTOL
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
Louise Corfield, instructed by Ashfords LLP), for the Claimants
The First Defendant in person
The Second Defendant was not present or represented
Consequential matters dealt with on paper
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment will be handed down by the Judge remotely by circulation to the parties or representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 1:30 pm on Friday 7 October 2022.
Introduction
On 29 September 2022 I handed down judgment in this Part 8 Claim to remove the first defendant (whom I shall refer to simply as the defendant) as executor of the will of the late Clive McDonald: see [2022] EWHC 2405 (Ch). I held that the claim succeeded, and invited written submissions on consequential matters, including costs. I have received those submissions from both the claimants and the defendant, and considered them.
In a postscript to my judgment, I recorded that, after I had circulated a draft of my judgment, the defendant had sent me two detailed emails, One proposed the addition of significant further material to my judgment, which would have the effect of finding facts on matters which were not relevant to my decision on the claim. The other sought to re-argue the substance of my decision. I have to record that, in addition to the submissions on consequential matters which I had invited, the defendant also sent me a further email seeking to re-argue points in the case. (He also sent a number of exhibits after the deadline for submissions had passed, but I am not concerned with that now.)
Questions to the judge
In addition to that, the further email sought answers to questions about me personally. It included these paragraphs:
“Since your conclusions are so contrary to the weight of the evidence of my capable, reliable, objective and effective handling of the administration of my brother's estate, at no cost other than appraisal, insurance and repair costs etc., I have to conclude that your perverse contrarian decision is driven by some ulterior motive based on some connections to others, including, possibly, in the legal profession. Your very petty puffed-up gaslighting ruling contains much unsupportable contrived hypothetical and hypocritical conjecture, plus errors of fact and therefore lacks merit and intellectual honesty. Again, this is my opinion. With little rancour.
So, in the interests of full disclosure, transparency and proof of judicial independence, I ask that you divulge by affirmation your current status relative to the Bristol Province Freemasons, or any other Freemason hall, and so declare your independence from Freemasons and also your independence from any other connections that the fair-minded observer would consider to be an undue influence on your judgments. Such undue influence could include overly close connections with Matthew Evans or any other Hugh James partners or associates or similarly with Ashford's LLP personnel or other judges such as CJ Myles Kenneth Watkins, born Salisbury 1966, ‘convicted’ June 8 of oath-breaking ex-parte activity, who was on the bench October 1, 2021.”
The defendant lives in Canada, and I do not know what the relevant rules are there. But applicants for judicial appointment in this country are not asked to declare whether they are freemasons (or belong to any other organisations, social, political or otherwise). Judges in the UK have the same freedom of association, and the same right to respect for their private lives, as everyone else ( cf the European Convention on Human Rights, 1950, articles 5 and 8). They are not required to respond to enquiries about their lawful private activities. Judges are in general automatically disqualified for acting in any case in which they have a financial or other personal interest, and in any other case are expected to disclose to the parties any matter which could arguably lead a fair-minded and informed observer to conclude that there was a real possibility of bias. I have made no such disclosure in this case, because I am not aware of any such matter.
The law relating to costs
Generally
The rules relating to costs in English civil litigation are well known. Under the general law, costs are in the discretion of the court: Senior Courts Act 1981, section 51(1); CPR rule 44.2(1). However, if the court decides to make an order about costs, the general rule is that the unsuccessful party in the proceedings pays the costs of the successful party: CPR rule 44.2(2)(a). However, the court may make a different order: CPR rule 44.2(2)(b). In deciding whether to make an order and if so what, the court will have regard to all the circumstances, including conduct of all the parties and any admissible offer to settle the case (not falling under CPR Part 36) which is drawn to the court's attention: CPR rule 44.2(4).
In particular, the court may make an order (amongst others) that a party must pay a proportion of another party's costs, an order that costs be paid from or until a certain date only, and an order for costs relating only to a distinct part of the proceedings: CPR rule 44.2(6)(a), (c) and (f). But before making an order of the last type, the court must first consider whether it is practicable to make one of the first two types: CPR rule 44.2(7). So, an issues-based order is possible, but the rules require the court first to consider making a proportion of costs order or a time limited order.
The general rule requires the court to ascertain which is the “successful party”. In Kastor Navigation Co Ltd v Axa Global Risks (UK) Ltd [2004] 2 Lloyd's Rep 119, Rix LJ (giving the judgment of the Court of Appeal) said (at [143]) that the words “successful party” mean “successful party in the litigation”, not “successful party on any particular issue”.
Trusts and estate litigation
In addition to the general costs rules, there are particular rules for costs in trusts and estate litigation. They arise because of the special position of a trustee or personal representative taking part in such litigation, and in particular because of the indemnity of the estate to which such a person is normally entitled. That indemnity is now statutory, by virtue of section 31 of the Trustee Act 2000. This codified the law as it then was: Price v Saundry [2019] EWCA Civ 2261, [22]. It provides:
“(1) A trustee—
(a) is entitled to be reimbursed from the trust funds, or
(b) may pay out of the trust funds,
expenses properly incurred by him when acting on behalf of the trust.”
“Properly incurred” here means “not improperly incurred”: Price v Saundry, [24].
Specific provisions in the CPR in effect implement the basic rule in the 2000 Act. Rule 46.3 and para 1 of the Practice Direction to Part 46 contain the main ones. Rule 46.3 is as follows:
“(1) This rule applies where –
(a) a person is or has been a party to any proceedings in the capacity of trustee or personal representative; and
(b) rule 44.5 does not apply.
(2) The general rule is that that person is entitled to be paid the costs of those proceedings, insofar as they are not recovered from or paid by any other person, out of the relevant trust fund or estate.
(3) Where that person is entitled to be paid any of those costs out of the fund or estate, those costs will be assessed on the indemnity basis.”
(I interpose to say that rule 44.5, referred to in rule 46.3(1)(b) above, concerns costs payable under a contract, and is not relevant to this case.)
Para 1 of the Practice Direction to Part 46 is as follows:
“1.1 A trustee or personal representative is entitled to an indemnity out of the relevant trust fund or estate for costs properly incurred. Whether costs were properly incurred depends on all the circumstances of the case including whether the trustee or personal representative (‘the trustee’) –
(a) obtained directions from the court before bringing or defending the proceedings;
(b) acted in the interests of the fund or estate or in substance for a benefit other than that of the estate, including the trustee's own; and
(c) acted in some way unreasonably in bringing or defending, or in the conduct of, the proceedings.
1.2 The trustee is not to be taken to have acted for a benefit other than that of the fund by reason only that the trustee has defended a claim in which relief is sought against the trustee personally.”
In Blades v Isaac [2016] EWHC 601 (Ch), I commented on these provisions as follows:
“66. Rule 46.3 and para 1 of the Practice Direction to Part 46 deal with the costs of trustees and personal representatives. They do not deal with the costs of other parties, such as beneficiaries who are joined to a trustee's or personal representative's application for directions, or who indeed issue proceedings against the trustee or personal representative for such directions. Nor do they deal with beneficiaries' costs in hostile litigation. These matters are all dealt with in the caselaw, and in particular in the decision of Kekewich J in Re...
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