Perrins v Holland and Others
| Jurisdiction | England & Wales |
| Judge | The Chancellor,Lord Justice Moore-Bick,Lord Justice Jackson |
| Judgment Date | 08 December 2010 |
| Neutral Citation | [2010] EWCA Civ 840,[2010] EWCA Civ 1398 |
| Docket Number | Case No: A3/2009/2508 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 December 2010 |
[2010] EWCA Civ 1398
Mr Justice Lewison
Before The Chancellor of the High Court
Lord Justice Moore-Bick
and
Lord Justice Jackson
Case No: A3/2009/2508
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
MS PENELOPE REED QC & MR J QUIRKE (instructed by Tyndallwoods Solicitors, Birmingham) for the Appellant
MR ANDREW CHARMAN (instructed by Sydney Mitchell Solicitors, Birmingham) for the 1 st and 2 nd Respondents
MR A BURDEN (instructed by Williamson & Soden Solicitors) for the 3 rd Respondent
The Chancellor:
Introduction
By his order made on 21st December 2009 Lewison J pronounced for the force and validity of the last will and testament dated 26th September 2001 of Robert Perrins, deceased (“the Testator”) and made certain consequential orders as to costs. The reasons for those orders were explained by Lewison J in two judgments. The first given on 31st July 2009 dealt with the merits of the claim. The second given on 21st October 2009 considered the costs of the action. By an amended appellant's notice issued on 20th January 2010, David sought to appeal from that order on three grounds. The first two related to the grant of probate in solemn form, the third to certain of the orders as to costs.
Permission to appeal on each of the three grounds was granted by Patten LJ on 16th February 2010. Argument on the first two was heard on 22nd and 23rd June 2010. By order of this court made on 22nd July 2010 the appeal on those two grounds was dismissed. By the same order this court directed that the hearing of the appeal on the third ground of appeal should be heard on 3rd/4th November 2010. In the event, and in an attempt to minimise costs, by letter dated 22nd October 2010 this court agreed to dispense with a hearing and to determine the appeal on the third ground on the basis of written submissions only. This is my judgment in relation to that third ground. In addition I will deal with the costs of these appeals and the application of David for leave to appeal to the Supreme Court
The circumstances of this case are set out in paragraphs 5 to 11 of my judgment given on 21st July 2010 in relation to the first two grounds. I will not repeat them. The order of Lewison J in relation to costs is as follows:
“1. Pursuant to the Order of HHJ Purle QC of 15 September 2008 the solicitors to the Claimant shall pay the costs of the Defendants of and occasioned by the adjournment of that date assessed if not agreed on the standard basis.
2. The Claimant (a party who was in receipt of services funded by the Legal Services Commission) shall pay such sum as is reasonable in respect of the costs of the Third Defendant pursuant to section 11 Access to Justice Act 1999, such amount to be determined by a Costs Judge.
3. There be a detailed assessment of the costs of the Claimant which are payable out of the Community Legal Service Fund.
4. The First and Second Defendants shall recover their costs of the action from the estate of the Deceased, to be assessed on the indemnity basis, if not agreed by the Third Defendant, including such costs relating to the adjournment on 15 September 2008 as they do not recover from the solicitors for the Claimant under paragraph 1 above.”
The grounds of appeal in relation to that part of the order of Lewison J are as follows:
“a. Having found rightly that this was a case where the circumstances were such that the matter required investigation and therefore there should be no order as to costs he was wrong to hold that a very low offer made by the Third Defendant to settle the matter when she had not made full disclosure to the Claimant should result in the Claimant being ordered to pay the costs;
b. He failed to deal with the issue which arose on a hearing before HHJ Purle QC on 15 September 2008 as to whether it was right that the Claimant should pay two set of costs on his application for an adjournment where the First and Second Defendants and the Third Defendant were respectively represented by separate legal teams.”
I shall consider the challenge to paragraph 1 on the ground specified in paragraph b first. In my view it is misconceived. It is clear from the face of the order and from paragraphs 21 to 24 of the second judgment of Lewison J that the order for costs was made by HH Judge Purle QC against David's solicitors personally. It is not an order against David. Accordingly David has no interest in the issue. His solicitors did not seek to be joined as parties nor did they seek permission to appeal from the orders of either HH Judge Purle QC or of Lewison J.
The issue with which Lewison J did deal was the question reserved by the order of HH Judge Purle QC whether the costs of all three defendants should be paid by the solicitors. As Lewison J explained in his second judgment HH Judge Purle QC had been concerned to be satisfied that it was reasonable for the first and second defendants, the executors, to be represented separately from the third defendant (“Anne”). For the reasons given in paragraph 23 of his second judgment Lewison J considered that it was. There was never any question of whether Anne's costs should be paid as she was an essential party to the trial of the claim which had had to be adjourned. Accordingly, there is no merit in the contention advanced in paragraph b in addition to the circumstance that this is not an issue David is entitled to pursue.
I turn then to the challenge to paragraph 2 of the order of Lewison J. In my judgment given on 21st July 2010 I said (paragraph 37)
“There remains for further argument the appeal from the order of Lewison J in respect of the costs of the proceedings before him. They were not considered at the earlier hearing of the appeal so that the executors should not incur costs of appearing on those grounds which were of no concern to them. Given that we shall now have to deal with the costs of this appeal in addition I would urge the parties to consider whether it is right to incur yet further costs in contesting the costs order made by Lewison J. The wreck of the Testator's estate is already total, there can be nothing left in it for anyone.”
In addition to the concern there expressed it is remarkable that there is no evidence that the enquiry directed by paragraph 2 of the costs order has taken place nor any indication that, if it had, David would be likely to be ordered to pay any amount towards Anne's costs of the action. In those circumstances it would be open to this court to dismiss this part of the appeal as academic.
But there is no merit in this part of the appeal either. In his costs judgment Lewison J considered a submission made on behalf of David that Anne should pay his costs notwithstanding that he had lost and she had won. Lewison J rejected each of the grounds relied on. In paragraph 13 he added:
“What, in my judgment, really caused the litigation was David's refusal to understand or acknowledge the character or depth of the relationship between his father and Anne. The family disapproved of Robert's choice of Anne and were suspicious of her motives. Robert was aware of their disapproval, yet stuck to his guns. It was the fact that Robert left his only valuable asset to Anne that was, in my judgment, the trigger for the litigation. The cause was not, therefore, either Robert's mental capacity or Mr Ferguson's conduct.”
The judge then considered whether the proper order as between David and Anne was no order as to costs. In that respect he concluded in paragraphs 17:
“More cogent, to my mind, is the argument that the second established exception applies. This, it will be recalled, is that if the circumstances lead reasonably to an investigation of the matter, then the costs may be left to be borne by those who have incurred them (i.e. there should be no order for costs as between the contending parties). Although Henderson J noted in Kostic v Chaplin that recent cases had narrowed the scope of the first established exception, he made no similar remark in relation to the second. There is, I think, still a public interest that where reasonable suspicions are raised about the validity of wills they should be proved in solemn form. [Counsel for David] submits that David had to come to court “if the evidential fog and suspicion surrounding the state of the testator's mind and health and his execution of the will were to be lifted”. The evidential fog cannot but recall the opening of Bleak House; just as the exhaustion of the estate in legal costs cannot but recall its ending. Nevertheless, despite its colourful language, there is a real point here. In my judgment the circumstances of Robert's disability coupled with the information given to David did raise a reasonable suspicion about the validity of the will. In my judgment, therefore, there was justification for an investigation of the matter. All other things being equal, this would have led me to order that costs should lie where they fall as between David and the other parties.”
The judge then considered an offer made by Anne on 8th August 2005 to settle both this action and a claim by David for relief under the Inheritance (Family and Dependents) Act 1975 for a payment of £10,000 with no order for costs in either proceeding. In that respect he said:
“18…The latter claim was not before me. The offer of settlement was a payment of £10,000...
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