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High Court orders daughter to pay costs under contentious probate rule


Judge Murray: followed “clear language” of the rule

A daughter who lost out over her father’s will has been ordered by the High Court to pay an initial £65,000 in costs despite not actively challenging it, under a rule that applies only to contentious probate cases.

Edward Murray, sitting as a deputy judge of the Chancery Division, said there was “little modern case law” on the construction of CPR 57.7(5)(b).

This provides that where a defendant does not put a positive case in their favour, but wants the will to be proved, the court will not make an order for costs against him unless it considers that there was no reasonable ground for opposing the will.

Judge Murray upheld the father’s will and ordered that a caveat entered by the daughter, Ruth Simmonds, cease to have effect.

Under the will, made in February 2012, the father’s partner was the sole beneficiary. It replaced an earlier will which left Ms Simmonds a substantial legacy.

Judge Murray said the claimant in the case, the deceased’s partner, argued that Ms Simmonds had no reasonable ground. This meant the normal costs rule should apply and she should pay both the claimant’s costs and those of the second defendant, an executor of the estate.

Delivering judgment in Elliott v Simmonds and another [2016] EWHC 962 (Ch), Judge Murray said it was sufficient to start with the “clear language” of CPR 57.7(5)(b), “bearing in mind the principles of policy and fairness underlying the costs regime and in the light of the court’s discretion as to costs set out in CPR 44.2”.

He said a “number of arguments” had been put forward by counsel for Ms Simmonds to suggest there were reasonable grounds.

The judge said these included the argument that there was no “apparent reason” why the father should have wished to extinguish her legacy and the solicitor who drafted the will had failed to produce a detailed attendance note of his instructions.

However, Judge Murray said: “I have concluded that none of the individual arguments raises a reasonable ground on which to oppose the will. I have also considered and rejected the conclusion that somehow, taken together, they raise a reasonable ground”.

He accepted counsel for the defendant’s argument that costs should only be awarded against Ms Simmonds “from the date on which she, with her adviser, had sufficient material on which to form a view about whether there was any ground to oppose the will”. Rejecting counsel’s suggested date of April 2014, the judge made an order for costs to be applied from June 2013.

Having taken into account the claimant’s costs budget, Judge Murray ordered the defendant to pay £65,000 on account of costs. He made no order for costs in relation to the second defendant, as requested by the executor’s counsel and not opposed by the claimant.