The Problem With Costs (Part 3 of 3)

13 February 2020 10:09 am

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. There are a number of hurdles to overcome, the first, second and third of which we have demonstrated in our first and second blogs ….. in this, the third of our blogs on this subject, we explore the position after you have won at trial (and our fourth and fifth hurdles)!

Hurdle 4 – was it reasonable for the case to have been brought (and/or who caused the dispute)

This is another unusual feature of Will dispute or Will contest cases. The Judge (or Court) in this type of claim has a much more “inquisitorial” role than is normally the case. This potentially has quite profound implications in relation to the usual rule that the winner takes all and the loser pays his or her costs. The position was made particularly clear by one of the leading cases on this called Kostic v Chaplin 2007 EWHC 2909 (ch) ( https://swarb.co.uk/kostic-v-chaplin-and-others-chd-7-dec-2007/) :

1. The two exceptions were stated as follows by Sir Gorell Barnes P in Spiers v English [1907] P 122 at 123:

“In deciding questions of costs one has to go back to the principles which govern cases of this kind. One of those principles is that if a person who makes a will or persons who are interested in the residue have been really the cause of the litigation a case is made out for costs to come out of the estate. Another principle 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. If it were not for the application of those principles, which, if not exhaustive, are the two great principles upon which the Court acts, costs would now, according to the rule, follow the event as a matter of course. Those principles allow good cause to be shewn why costs should not follow the event. Therefore, in each case where an application is made, the Court has to consider whether the facts warrant either of those principles being brought into operation.”

If then the circumstances lead reasonably to an investigation (in other words there was some foundation to the claim against the legal validity of the Will although ultimately it was proven valid), the Court can and will Order that each party pays its own costs. If the person making the Will or those interested in the residue of the estate have been at fault, then each parties costs will be ordered to be paid by the estate, regardless of the outcome.

Hurdle 5 – getting your costs paid!

So far your “horse” (if we can call your claim a “horse”!?) has successfully navigated the hurdles we mention above and moreover, you have produced sufficient evidence to persuade a court to find in your favour and award you your costs (to be paid by your opponent). Is that the end of the story; well not quite. We referred to some potential problems here when we started on this journey. The fact is, if you have come this far, your costs are likely to be huge and even though they might be justifiable, they must still be assessed or “taxed”. An indication of how they might be dealt with can be found in the comments of Mr Justice Francis in Weisz v Weisz (see https://www.lawgazette.co.uk/news/judge-criticises-74000-legal-costs-for-inheritance-application/5102549.article). In short, you will not be encouraged! You can expect a significant percentage of your own costs to be “taxed” off, probably 30% or more which you will probably have to meet from your own pocket. There is then the prospect of trying to get the losing party to pay them and (of course), you will have had to pay your Solicitors even more money to deal with the costs assessment process.

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.