The Problem With Costs (Part 2 of 3)

THE VEXED QUESTION OF “WHO PAYS” IN YOUR WILL DISPUTE OR WILL CONTEST CLAIM

Surely if I win my will dispute or will contest claim, my opponent will pay? After all, the loser always pays doesn’t he?

Well I am afraid the answer is not necessarily and in any event what do you/we mean by “win”. The latter question is for another day, but let us assume you win at a trial, even though 99.9% of will dispute and/or will contest claims never get that far.

There are a number of hurdles to overcome ….. in this, the second of our blogs on this subject, we explore the position after Court proceedings have started. As we showed in our first blog, you won’t necessarily recover your costs, even if you win at trial!

The first hurdle, explored before was “Hurdle 1 – your pre-action conduct”. In a nutshell it has to be “reasonable” and really you need to at least attempt so-called “alternative dispute resolution”, in particular a Mediation (see for example https://www.willclaim.com/contesting-a-will-the-dangers-of-failing-to-engage-in-alternative-dispute-resolution-leading-to-trial/ )

Hurdle 2 – your conduct during the course of the court proceedings

The same behaviours we refer to above are usually required during the course of court proceedings too. Moreover, if you have failed to engage in ADR (alternative dispute resolution) before the court proceedings were started, you are likely to be asked by the Court to reconsider this and even ordered to do so. We refer in this regard to our earlier blog at https://www.willclaim.com/contesting-a-will-can-a-court-force-a-party-to-a-will-dispute-to-engage-in-alternative-dispute-resolution/ where we refer to the Court’s powers to Order a FDR (“financial dispute resolution”) or ENE (“early neutral evaluation”) appointment which are effectively mediations, but with the Judge acting as a Mediator and in not such an “impartial” way! We suspect this might come as an unwelcome surprise to some gun ho litigants who are relishing their day in Court at a potential trial; moreover, the comments of a Judge at this point can be particularly powerful and harsh towards the party seen as most likely to be at fault in preventing a settlement.

Hurdle 3 – the “reasonable” defence of “no defence”

What an earth can this mean? Well, if the Will dispute or Will contest claim has some merit, for instance, where the Will in dispute was made at a time when she or he had some capacity issues (recorded in their medical records) but where no step (or no satisfactory step) was taken to have the person making the Will assessed by a medical professional prior to making the Will (refer to our earlier blog here – https://www.willclaim.com/has-it-become-less-risky-to-contest-a-will/ ), it is possible to “defend” the claim at no risk of being ordered to pay the winners costs. We refer in this regard to:

CPR 57.7(5) (“CPR” stands for “Civil Procedure Rules” see https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part57#57.7) which states, inter alia, as follows:

5)
(a) A defendant may give notice in his defence that he does not raise any positive case, but insists on the will being proved in solemn form and, for that purpose, will cross-examine the witnesses who attested the will.
(b) If a defendant gives such a notice, the court will not make an order for costs against him unless it considers that there was no reasonable ground for opposing the will.

This then can form another pressure point to force a settlement, especially where the witnesses called to “prove” the Will are less than comfortable with the prospect of being cross-examined and/or where the cost of this process might be problematic.

If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.