Green v Ellul (No 2)

This matter concerned an appeal regarding costs in a family provision claim. The appellants, Green and Ellul, sought an order that the respondents pay their costs of the appeal and the hearing before the master.

The central legal issue before the court was the appropriate exercise of the court's discretion regarding costs in family provision claims, particularly concerning unsuccessful applicants and the extent to which costs should be borne by the estate. The court was required to consider whether the general rule that costs follow the event should apply, or if the specific nature of family provision legislation and public policy considerations warranted a departure.

The court reasoned that the ordinary rule as to costs is more easily displaced in family provision claims due to conflicting public interest considerations. While unmeritorious litigation that dissipates an estate should not be encouraged, the purpose of family provision legislation is to ensure adequate provision for dependents. Discouraging meritorious claimants through the ordinary costs rule would undermine this objective. The court noted that in cases where there is a moral claim or obligation, or where the litigation arises through the fault of the testator or those interested in the residue, costs may be paid out of the estate, even for unsuccessful applicants. The reasonableness of the application and the financial position of the applicant are also relevant factors.

The court ordered that the appellants were entitled to payment of their costs of the appeal and the hearing before the master from the estate, on a solicitor-client basis. The application for an order that the respondents pay the appellants' costs was dismissed.