Erem v Moussa (No 2)

In the case of Erem v Moussa (No 2), the matter before the court involved a dispute over costs in the context of a contested probate. The deceased, Mrs Erem, left an estate which was the subject of a will contest brought by her son, the plaintiff, against her husband, the defendant. The case was eventually settled, but the question of costs remained unresolved, particularly whether the defendant's costs should be payable out of the deceased's estate. The court was required to determine the basis upon which the costs should be quantified and whether there were any exceptions to the general rule that costs follow the event.

The court examined whether the costs should be calculated on an indemnity or ordinary basis. The plaintiff argued for an indemnity basis, which would allow the defendant to recover costs exceeding the amount that the plaintiff would have been liable to pay had the case proceeded to judgment. The defendant contended for an ordinary basis, which would limit recovery to the amount that the plaintiff would have been liable to pay. Additionally, the court considered whether there were any exceptions to the general rule that costs follow the event, specifically focusing on the defendant's offers of compromise made under Calderbank. The court had to decide if these offers could influence the costs order.

The court found that the costs should be assessed on an ordinary basis. The reasoning included that the settlement reached was not a result of any of the defendant's offers of compromise but rather through negotiations. The court held that the Calderbank offers did not provide a sufficient basis to deviate from the ordinary rule of costs. Therefore, the defendant's costs were not payable out of the deceased's estate. The court concluded that the costs should be borne by the party who made the successful settlement offer.

In conclusion, the court ordered that the defendant's costs be paid by the plaintiff on an ordinary basis. The court rejected the application for costs to be paid out of the deceased's estate and dismissed the defendant's claim for indemnity costs based on the Calderbank offers. The final orders ensured that the plaintiff bore the costs of the proceedings, limiting the defendant's recovery to the amount that the plaintiff would have been liable to pay had the case proceeded to judgment.