CONTESTING A WILL WITH WILLCLAIM SOLICITORS NO WIN NO FEE SPECIALISTS – JASSAL v SHAH AND SHAH [2024] EWHC 2214 (Ch) AND PAYING COSTS OF FINANCIAL PROVISION CLAIMS

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss the rules on litigation costs in financial provision claims under the Inheritance (Provision for Family and Dependants) Act 1975, asking whether it’s ever possible for a claimant to receive their costs as part of an overall award.

Overview – Jassal v Shah and Shah [2024] EWHC 2214 (Ch)

Jassal v Shah and Shah involved a claim under the Inheritance (Provision for Family and Dependants Act), 1975 (‘the Act’). The will claim was brought by Srendarjit Jassal who had been in a lengthy, on-off relationship with the deceased, Fiaz Ali Shah. Her case was that, despite a previous period of separation, in the immediate two years before Fiaz’s death, she had been living with him for the purposes of section 1(1A) of the Act.

Their relationship began in 2000 and although they never married, Srendarjit argued it had, over time, became equivalent to a marriage.

The substantive will contest proceedings heard that the deceased had made three wills as follows:

• The first, in August 2006 left everything to Srendarjit
• The second, in December 2006 left her only half the proceeds of one property
• A third (final) will, made in December 2018 left her nothing at all.

Fiaz died in 2020 leaving a net estate of £1.4 million.

The executors of the will (two of Fiaz’s children) defended the inheritance claim. While they accepted that following an initial separation, the relationship between Srendarjit and their father had been rekindled to a degree, they said she had never moved back in to live with their father before his death. 

What rules apply to costs in will claims under the Inheritance Act?

Costs of litigation under the Act are governed by the Civil Procedure Rules, in particular CPR 44.2(1). It states that the court has discretion as to:

• whether costs are payable by one party to another;
• the amount of those costs; and
• when they are to be paid.

The usual practice is for the court to first determine the substantive claim and, in the light of that determination, go on to decide whether to make an order in relation to the litigation costs and, if so, what order.

Rule 44 of the CPR might appear to be clear cut. However, applying it in practice is complicated by the fact that litigation costs and the financial needs of a successful claimant are not mutually exclusive. That’s to say when deciding the level of an award under the Act one of the factors to be considered is the claimant’s financial needs, presently and in the future. On any view, a liability for litigation costs (in this case a substantial six figure sum) could realistically come under the umbrella of financial needs.  

Decision of Deputy Master Marsh

As things transpired, in the substantive will dispute claim, the Deputy Master found that Srendarjit and the deceased had been living together as a married couple for two years before Fiaz’s death. Srendarjit therefore qualified for relief under section 2 of the 1975 Act.

The full judgment and details of the award can be read here https://www.bailii.org/ew/cases/EWHC/Ch/2024/2214.html

It was the costs element of this award that caused eyebrows to be raised in certain legal circles, and which we concentrate on below.

Departing from the established CPR approach to costs, Deputy Master Marsh instead awarded Srendarjit her litigation costs as part of the substantive relief – in effect he treated her costs in the same way as any financial need such as housing or living costs.

The executors successfully obtained permission to appeal the costs portion of the overall award.

In Jassal High Court reaffirms established approach to costs in inheritance dispute cases

On appeal the executors argued that the Deputy Master had made an error of law by awarding Srendarjit her litigation costs as part of the substantive relief. He ought to have considered costs separately to granting substantive relief in accordance with the usual practice under the CPR.

Srendarjit’s response was that the way litigation costs had been dealt with

was consistent with the wide discretion afforded to a trial judge. (She did however appear to cede some ground by admitting that the Deputy Master’s approach was ‘unusual’.)

In the event, Deputy High Court Judge Pickering KC adopted the more conventional route in finding unequivocally that will dispute claims under the Act are ‘squarely governed’ by the CPR. In a polite but firm putdown of the earlier decision, Mr Justice Pickering KC held that

 ‘with the greatest respect to the Deputy Master (in respect of his otherwise impeccable decision), it was simply not permissible for Srendarjit’s litigation costs to be considered as part of the substantive award.’

The correct approach – no matter how unrealistic in practical terms – is to ignore the question of litigation costs while considering what substantive relief to grant under the Act.

The effect of this ruling was to exclude litigation costs of some £140,000 from the lump sum awarded to Srendarjit. Her loss was cushioned to a degree by Pickering KC’s acknowledgement that she was the ‘clear winner’ in the substantive proceedings. That meant the costs of those proceedings (though not appeal costs) should be met by the two appellant executors.

What do we learn from Jassal?

Costs are always an important consideration when running any kind of will contest claim. It is a complex area of law and one where there is sometimes a degree of unpredictability. For this reason at WillCaim Solicitors we will always be clear with you about costs before proceeding with your case.

The costs regime under the CPR is geared towards encouraging without prejudice negotiations with a view to settling litigation as opposed to going to trial.

Jassal suggests that courts will prioritise this aim and deal with costs separately – no matter how much this reduces the amount a successful will contest claimant ultimately receives.

If you consider any of these facts and matters are of interest, 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 and/or visit us at www.willclaim.com.

We provide details about our no win no fee arrangements at https://www.willclaim.com/no-win-no-fee/.