Royal Commonwealth Society for the Blind (also known as Sightsavers International, registered charity number 207544) v John Wayland Beasant (in his personal capacity and as Personal Representative of the estate of Audrey Thelma Arkell deceased)
| Jurisdiction | England & Wales |
| Judge | Chief Master Shuman |
| Judgment Date | 09 November 2021 |
| Neutral Citation | [2021] EWHC 351 (Ch) |
| Year | 2021 |
| Docket Number | Case No: PT-2020-000561 |
| Court | High Court |
[2021] EWHC 351 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
PROPERTY TRUSTS AND PROBATE LIST
Rolls Building
7 Rolls Buildings
London, EC4A 1NL
Chief Master Shuman
Case No: PT-2020-000561
Mr Marc Baxter (instructed by Withers LLP) appeared on behalf of the Claimant.
Mr James Egan (instructed by Kennedy Solicitors) appeared on behalf of the First Defendant
Mr Howard Smith (instructed by) appeared on behalf of the Third defendant.
This is judgment in relation to costs following a consequentials hearing before me yesterday. Although listed for an hour, it took in fact two hours and raised additional issues. I handed down judgment in the claim on 17 August 2021.
There are a menu of orders and alternative positions by the parties.
The claimant seeks a third-party cost order against the third defendant and in the alternative, that the first defendant pay the claimant's costs. In addition the claimant seeks an order that costs should be on an indemnity basis from March 2020. Logically, that applies whether it is option one or option two for the claimant.
The first defendant sought oral permission to appeal my judgment, which I refused. Mr Egan, counsel, submits that his first position is that it would be appropriate for me to reserve or adjourn the question of costs until after the appeal has been determined, with permission to apply to restore the question of costs, if necessary. The second position is that costs should be paid out of the estate. That is the usual order in cases such as this. The third position is that the third-party, so the third defendant, should be ordered to pay the costs of the first defendant, and that should be on an indemnity basis. That is primarily sought on the basis that the third defendant has provided an indemnity to the first defendant. Mr Egan's position is that the first defendant should be in no worse position with the benefit of a third-party costs order as he might under his contract of indemnity with the third defendant.
The third defendant has been joined for the purpose of costs. It is the firm in which the second defendant works and where the will drafter works. The first and second defendants are the executors and obtained a grant of probate, with power reserved to Mr Keane. The second defendant having filed an acknowledgment of service saying he opposes the claim then has, oddly, played no part in these proceedings.
In relation to the third defendant, it was by no means clear to me what the third defendant's position was in relation to costs. I anticipate Mr Smith may well have been instructed quite late in the day in relation to this matter. I therefore gave him an opportunity to obtain clearer instructions. The third defendant's position has been crystallised to be this. They adopt the first position of the first defendant. They agree that there should be a reservation or an adjournment of the question of costs, pending the appeal. If the court is not with the first defendant on that, then their second position is they resist the third-party costs order, by both parties. Mr Smith says I must distinguish the position between the claimant and the first defendant, which I think is correct on his analysis. His position is that an indemnity has been given, and that is sufficient. It would be unnecessary (and I paraphrase) otiose to make a third-party costs order. His final position is summarised in paragraph 5 of his short skeleton argument and that says:-
“This said, in circumstances where they have given an indemnity, Alletsons do not wish to incur further costs unnecessarily. Although a third-party costs order in favour of the claimant is not required, Alletsons would prefer to submit to such an order than incur further cost.”
The competing applications
The first defendant's application to reserve or adjourn the costs as supported by the third defendant. Mr Egan submits that costs should not be determined at this stage, because the first defendant wishes to renew his application for permission to appeal. That is in relation to my judgment on the substantive claim, but is also, on the first defendant's case, interweaved with the ex tempore judgment that I gave on 5 February 2021. I refused to admit various iterations of a witness statement of the will drafter into evidence, not being satisfied it met the gateway test under section 21 of the Administration of Justice Act 1982. After giving judgment I refused an application for permission to appeal and proceeded to hear the substantive claim. The first defendant never renewed that application before a High Court Judge and is now substantially out of time. Mr Egan invited me to grant relief from sanctions and then to extend time to bring his application for permission in respect of the January decision, I refused that application. He will have to renew that application before a High Court Judge.
The first defendant did not succeed in his application to admit witness evidence, albeit that was on 5 February 2021, and he did not succeed in arguing that the will should be construed in such a way that sub-clause 4.1 was effectively deleted. As I said in my substantive judgment the first defendant did not seek to bring a rectification claim, he relied entirely on construction.
It does not seem to me that it is furthering the overriding objective to leave matters over in a case where the claimant has succeeded in the construction of the will and the estate needs to be distributed. I should not leave the question of costs up in the air, with the potential that the first defendant may or may not obtain permission from a High Court judge to appeal my judgment that was handed down on 17 August 2021, and my judgment which was given orally on 5 February 2021.
To accede to the submission and defer costs to another day would be to unjustifiably penalise the winning party. It is usual at consequential hearings for the court to determine costs. It is proportionate to do so, and it is a proportionate use of the court's resources. No other basis has been put forward, other than the first defendant intends to file an application for permission to appeal my decision, to support putting off determining costs to yet another day. I therefore refuse that application.
The first defendant's application for costs to be paid out of the estate.
One of the features of this case is that the first and second defendant are the executors under the will dated 27 June 2016 (the will), and as I have indicated, they obtained a grant of probate, with power reserved to Neil Keane on 1 August 2019. Withers, who are the solicitors acting for the claimant, corresponded with the executors pre-issue. They identified the issue of construction of clause 4 of the will as contended for by the executors. Their clear analysis and argument was that the sum of £325,000 was not a gift to be paid to the first defendant (also the executor under the will), but in fact fell into the residuary estate and therefore, should be divided between the twenty-one beneficiaries, all described as “charities” in the will, rather than be gifted to the first defendant.
On 24 July 2020, the Part 8 claim was issued. The first defendant did not file an acknowledgment of service, but contested the claim and has acted throughout these proceedings through counsel and solicitors. The second defendant, as I have indicated, filed an acknowledgment of service contesting the claim, and then took no further steps. However, the evidence of the will drafter in various iterations was served by solicitors acting for the third defendant, or its insurers, then filed ultimately by the first defendant's solicitors. The first and second defendants did not seek the protection of a Beddoes order or any direction from the court under Part 64.
The will drafter in this case, Mr Vucicevic, is a chartered legal executive and director at the third defendant. The second defendant, is a partner at the same firm. The third defendants are the solicitors who were dealing with the administration of the estate on behalf of both executors.
Just going back through the procedural history of this claim, on 8 December 2020, Kennedy's the solicitors for the third defendants, who were not then a...
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