Re Dargie, Decd Miller v Thornton-jones and Others
| Jurisdiction | England & Wales |
| Year | 1953 |
| Court | Chancery Division |
Costs - Solicitor and client - Hostile litigation between trustees and beneficiaries - Whether trustees entitled to costs on basis of an indemnity.
In an action brought by beneficiaries under a will to assert a personal pecuniary claim against the trustees, it was ordered that the costs of the defendant trustees be taxed as between solicitor and client and that those costs when taxed
“be retained and paid by the defendants in the action as trustees of the … will out of the estate of the … testator.”
Certain disbursements, including a portion of counsels' fees, amounting to £437 were disallowed on taxation.
The present summons was taken out to ascertain whether the trustees were entitled to pay and retain out of the residuary estate all or any part of the sum of £437 or ought to account for and refund to the residuary estate the whole or some part of this sum:—
Held, that the trustees were not entitled to retain the disallowed items amounting to £437, but that they ought to account and refund to the residuary estate the whole of the amount so paid and retained over and above the taxed costs.
ADJOURNED SUMMONS.
By his will dated April 5, 1940, Thomas Frederick Dargie, who died on April 8, 1942, appointed the defendants to be his executors and trustees. In 1950, the plaintiff to the present summons and other beneficiaries under the testator's will, brought a hostile action against the defendants, the trustees. In that action [1950 D. 670] the beneficiaries sought (a) to have accounts taken of the remuneration actually received by the defendants from payments made to them by a certain limited company in which the testator had held large interests, and repayment of what might be found due on the account for the benefit of the testator's estate; (b) certain other relief; and (c) that the defendants be ordered to pay the costs of the action.
The action was tried by Wynn-Parry J., who during the course of the hearing directed that an originating summons be issued to cover certain of the issues raised in the writ. Judgment was delivered on July 5, 1951, and there followed a full argument on the question of cost. At the end of the discussion Wynn-Parry J. said:
“I have listened to counsel on the question of costs, and if I make what might be called a strict order it would be of the utmost complication and I think that it would result in nothing but more expense. The view I take is that part of the trouble has been caused by this action being started by writ instead of being brought before the court on an originating summons. On the other hand, there are certain costs — I do not know how much or what percentage they represent — which have been incurred by the defendants which, in the course the case took … need not have been incurred. On the whole it appears to me that so far as the defendants are concerned, they as trustees ought to have their costs as between solicitor and client out of the estate. So far as the plaintiffs are concerned, I think that, on the whole, as they are the persons interested in income and contingently interested in capital and it is extremely difficult to analyse their costs, the best thing to do is to make a similar order as regards their costs. So, in effect, I shall order the costs of all parties as between solicitor and client to be taxed and paid out of the estate.”
The order as finally drawn up provided:
“And this court doth order that it be referred to the Taxing Master to tax as between solicitor and client the costs of the plaintiffs and the defendants both of this action and of the said application by originating summons and it is ordered that all the said costs when taxed be retained and paid by the defendants in the said action as the trustees of the said will out of the estate of the said testator.”
Certain disbursements, including a portion of counsel's fees, amounting to £437, were disallowed on taxation.
The plaintiff took out the present summons to ascertain whether having regard to the order of Wynn-Parry J., dated July 5, 1951, the defendants as trustees of the testator's will (a) were entitled to pay and...
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...74 P. & C.R. D13, dicta of Millett, L.J. applied. (2) Carafe Trust, In re, 2005 JLR 159, considered. (3) Dargie, In re, [1954] Ch. 16; [1953] 1 W.L.R. 991; [1953] 2 All E.R. 577, considered. (4) E Trust, In re, 2008 JLR 360, considered. (5) Essel Trust, In re, 2008 JLR N[18], considered. (6......