Shelley v Prager (No 2)

[2020] NSWSC 1553

Supreme Court

New South Wales

Medium Neutral Citation:

Shelley v Prager (No 2) [2020] NSWSC 1553

Hearing dates:

On the papers

Date of orders:

4 November 2020

Decision date:

04 November 2020

Jurisdiction:

Equity - Family Provision List

Before:

Williams J

Decision:

The plaintiff is to pay the defendants’ costs on the ordinary basis. The balance of the defendants’ costs (that is, the difference between the defendants’ costs on the ordinary basis and on the indemnity basis) are to be paid out of the estate of the late William Andrew Watson. The Court makes no order as to the plaintiff’s costs, with the intention that the plaintiff will bear her own costs.

Catchwords:

COSTS – whether unsuccessful claimant for provision out of deceased estate should pay own costs and pay defendant executors’ costs – no question of principle

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Succession Act 2006 (NSW), s 99

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

Bartkus v Bartkus [2010] NSWSC 889

Carey v Robson [2009] NSWSC 1199

Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392

Daniels v Hall (No 2) [2014] WASC 272

Detheridge v Detheridge [2019] NSWSC 183

Harkness v Harkness(No 2) [2012] NSWSC 35

Hinderry v Hinderry(No 2) [2016] NSWSC 1577

McCusker v Rutter [2010] NSWCA 318

Meres v Meres (No 2) [2017] NSWSC 523

Moussa v Moussa [2006] NSWSC 509

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Salmon v Osmond [2015] NSWCA 42

Shelly v Prager [2020] NSWSC 1393

Singer v Berghouse (1993) 67 ALJR 708

Category:

Costs

Parties:

Dianne Elizabeth Shelly (Plaintiff)
Susan Elizabeth Prager (First Defendant)
Michelle Leah Warren (Second Defendant)

Representation:

Counsel:
Ms M Tibbey (Plaintiff)
Ms D Reid (Defendants)

Solicitors:
Brazel Moore Lawyers (Plaintiff)

File Number(s):

2019/121925

Publication restriction:

N/A

Judgment

Introduction and summary of decision

1. On 12 October 2020, I published the principal judgment dismissing the plaintiff’s claim for provision out of the estate of her late father: Shelly v Prager [2020] NSWSC 1393 (the Judgment).

2. The question of the costs of the proceeding was reserved to be determined on the papers after receiving written submissions from the parties.

3. The defendant executors made written submissions on 22 October 2020 contending that the plaintiff’s costs should not be paid out of the estate and the plaintiff should pay the defendants’ costs.

4. The plaintiff made written submissions on 26 October 2020 contending that her costs should be paid out of the estate on the ordinary basis and the defendants’ costs should be paid out of the estate on the indemnity basis.

5. Both parties made further written submissions on 2 November 2020 responding to each other’s earlier submissions.

6. For the reasons that follow, I have decided to make the following orders:

1. no order as to the plaintiff’s costs of the proceeding, with the intention that she will bear her own costs;

2. the plaintiff is to pay the defendants’ costs of the proceeding on the ordinary basis;

3. the balance of the defendants’ costs of the proceeding (that is, the difference between the costs payable by the plaintiff pursuant to order (2) above and the defendants’ costs on an indemnity basis) be paid out of the estate of the late William Andrew Watson.

7. These reasons assume familiarity with the Judgment.

Principles applicable to costs orders in family provision proceedings

8. The relevant principles to be applied in relation to the question of costs in family provision matters have been helpfully summarised by Hallen J in Meres v Meres (No 2) [2017] NSWSC 523 at [35]–[38], citing his Honour’s earlier judgment in Hinderry v Hinderry (No 2) [2016] NSWSC 1577 at [50]–[64]. I gratefully adopt his Honour’s summary of those principles which enables me to set out the applicable principles that are pertinent to the present dispute succinctly.

9. Section 98 of the Civil Procedure Act 2005 (NSW) provides that costs are in the discretion of the Court, which has full power to decide who will pay costs to whom and to what extent, whether on the ordinary basis or on an indemnity basis.

10. This provision must be read alongside s 99(1) of the Succession Act 2006 (NSW) which empowers the Court to award costs in family provision proceedings to be paid out of the estate (or notional estate) as the Court thinks fit. Section 99(1) of the Succession Act confers on this Court an unfettered discretion as to when costs are to be paid out of the estate. However, as Hallen J said in Hinderry v Hinderry (No 2) (supra) at [54], the provision does not apply to costs as between party and party, but only as to when and how much costs are to be paid out of the estate.

11. In an appropriate case, the Court may also make an order capping the costs to be recovered by one party from the estate: see Detheridge v Detheridge [2019] NSWSC 183 at [174]–[177] and the authorities referred to therein.

12. While s 98 of the Civil Procedure Act confers a broad discretion on the Court to award costs, it is well known that this discretion must be exercised judicially and in accordance with established principles or legislative provisions which operate as a fetter on the exercise of the discretion: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [65]. One such provision is Uniform Civil Procedure Rules 2005 (NSW) r 42.1 which provides that costs are to follow the event unless it appears to the court that some other order should be made.

13. It has been said in a number of previous decisions that, in family provision proceedings, the Court may be more ready to depart from the usual rule in UCPR r 42.1: see, for example, Bartkus v Bartkus [2010] NSWSC 889 at [24], citing Moussa v Moussa [2006] NSWSC 509; Carey v Robson [2009] NSWSC 1199.

14. In an oft-cited passage from Singer v Berghouse (1993) 67 ALJR 708, Gaudron J said (at 709, emphasis added):

“Family provision cases stand apart from cases in which costs follow the event. Leaving aside cases under the Act which, in s 33, makes special provision in that regard, costs in family provision cases generally depend on the overall justice of the case. It is not uncommon, in the case of unsuccessful applications, for no order to be made as to costs, particularly if it would have detrimental effect on the applicant’s financial position. And there may even be circumstances in which it is appropriate for an unsuccessful party to have his or her costs paid out of the estate.”

15. In Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392, Barrett JA (with whom Basten and Gleeson JJA agreed) explained (at [139]) the Court’s task when considering the “overall justice of the case” in the context of contemporary family provision litigation in New South Wales:[1]

“Where the application for a family provision order is dismissed, the prima facie principle with respect to costs is as stated in rules 42.1 and 42.20(1) of the Uniform Civil Procedure Rules - that is, there should be an order that the unsuccessful plaintiff pay the defendant's costs. In Jvancich v Kennedy (No 2) [2004] NSWCA 397, Giles JA observed (with Handley JA and McColl JA agreeing) that, in circumstances of that kind, the ‘overall justice of the case’ - the expression employed by Gaudron J in Singer v Berghouse - is ‘not remote from costs following the event’. There is, of course, discretion to depart from the prima facie principle for good reason, even to the extent of ordering that the unsuccessful plaintiff's costs be paid out of the estate; and the court should apply the ‘liberality and discrimination’ to which E M Heenan J referred.”

1. I note the statement to similar effect referred to by the defendants in Friend v Brien (No. 2) [2014] NSWSC 614 at [20] per White J (as his Honour then was).

16. In the last sentence immediately above, Barrett JA was referring to the judgment of E M Heenan J in Daniels v Hall (No 2) [2014] WASC 272. After referring to the practice of the court declining to make costs orders against unsuccessful family provision claimants as “leniency” which had a “long provenance”, his Honour said at [32]:

“… but it seems clear that, in more modern times, particularly with principles of modern case management, the tendency has been to move away from that position in favour of the more general principle of costs following the event but with attendant liberality and discrimination before adopting such a position in any particular case.”

17. In Salmon v Osmond [2015] NSWCA 42, Beazley P (with whom McColl and Gleeson JJA agreed) reaffirmed this modern approach. Her Honour said (at [174]):

“Nonetheless, the ‘overall justice of the case’ referred to by Gaudron J is ‘not remote from costs following the event’: Jvancich v Kennedy (No 2) [2004] NSWCA 397. The only difference is that family provision cases call for additional ‘liberality and discrimination’ in considering whether to exercise the discretion to override the usual rule: Chapple v Wilcox [2014] NSWCA 392 at [138]-[139].”

18. It is impossible to state exhaustively the circumstances in which the overall justice of the case will warrant a departure from the usual rule in UCPR r 42.1. Each case will turn on its particular facts. But there have been many decisions where the Court has made a different cost order. Some of those decisions are collected by Hallen AsJ (as his Honour then was) in Harkness v Harkness (No 2) [2012] NSWSC 35 at [18], as recited by his Honour in Meres v Meres (No 2) (supra) at [35]–[38] and Hinderry v Hinderry (No 2) (supra) at [50]–[64]. Those decisions show that the following factors may be relevant considerations in assessing the overall justice of the case:

• whether one party has engaged in unreasonable conduct in the commencement or maintenance of the proceedings which has resulted in the other party (or parties) to the proceeding incurring unnecessary costs;

• whether an applicant’s claim for provision out of an estate is frivolous, vexatious or made without reasonable prospects of success;

• whether an applicant’s claim, although unsuccessful, was otherwise reasonable, meritorious or borderline; and

• the relative size of the deceased estate.

19. In some cases, the financial position of an unsuccessful plaintiff may be a relevant consideration in favour of making no order as to the successful defendant’s costs. As Young JA said in McCusker v Rutter [2010] NSWCA 318 at [34]:

“Examples of situations where courts have thought no order should be made against an unsuccessful plaintiff are afforded by Sherborne Estate (No 2): Vanvalen v Neaves (2005) 65 NSWLR 268 per Palmer J and Moussa v Moussa [2006] NSWSC 509 per Barrett J. Whilst it is clearer in a case where if an order for costs is made against an unsuccessful plaintiff he or she will instantly become impecunious and so may be able to make a fresh application under the Act so that it is counter-productive to make an order as to costs against such a plaintiff, what Gaudron J said in Singer shows that it is not only in such cases that it may be inappropriate to make an order for costs against an unsuccessful plaintiff under the Act."

20. However, it is important to bear in mind that the mere fact that an adverse costs order will be significantly detrimental to an unsuccessful plaintiff’s financial position will not ordinarily supply a good reason to depart from the usual rule. In Chapple v Wilcox (supra), the respondent was unsuccessful in his claim for a family provision order. He submitted that if an adverse costs order were made against him, he would be instantly rendered impecunious (relying in part on what Young JA had said in McCusker v Rutter (supra) at [34]). This submission was rejected by the Court of Appeal. Barrett JA (with whom Gleeson JA agreed) said at [141]:

“Generally speaking, of course, a litigant's financial position is irrelevant when it comes to the exercise of the costs discretion, particularly where that litigant is a plaintiff. Having subjected the defendant to court proceedings and lost, a plaintiff without means will generally not be able to resist a costs order just because he or she cannot pay. That general principle may be subject to some relaxation in family provision cases by application of ‘liberality and discrimination’ - but only, I think, where the claim, although ultimately unsuccessful, had merit and involved a genuine question whether the scheme of testamentary benefaction in fact applying was, in the particular circumstances, one reflecting community standards. In Jvancich v Kennedy (No 2) (above), Giles JA recognized an analogy, as to costs, between family provision cases and probate proceedings. He noted that, in probate cases, departure from the rule that costs follow the event is often recognized as appropriate where the testator has been the cause of the litigation - where, for example, the will is ambiguous. In such cases, the costs of unsuccessfully opposing the executor may be ordered to be paid out of the estate. It may be said, in the same way, that if the testator has been the cause of family provision litigation by failing to make some disposition that he or she arguably should have made in accordance with community standards, the costs burden should fall on the estate, even if the ultimate decision of the court does not accommodate that disposition.”

Assets of the estate in comparison to the parties’ costs

21. As recorded in the Judgment at [9]–[14]:

1. the estimated value of the deceased estate in the Inventory of Property annexed to the grant of probate was $701,799.

2. as at the conclusion of the hearing, the net assets of the deceased estate had a value of approximately $621,656. [2]

   2. Adopting the defendants’ estimate (and noting that the plaintiff’s estimate was approximately $8,000 less) and excluding the $181,861 which I declined to designate as notional estate for the reasons set out in [133]–[155] of the Judgment.

22. As recorded in the Judgment at [15]:

1. the plaintiff’s costs of the proceedings up to the conclusion of the three day hearing were $143,600 on an ordinary basis; and

2. the defendant executors’ costs of the proceedings up to the conclusion of the hearing were $87,247 on an indemnity basis.

23. It will be immediately apparent that the plaintiff’s legal costs are very high in comparison to the value of the estate.

Submissions

Defendants’ submissions

24. As I have noted in [3] above, the defendants submitted that the plaintiff’s costs should not be paid out of the estate and that the plaintiff should pay her own costs as well as the defendants’ costs of the proceedings.

25. The defendant executors relied on various authorities referring to the applicable principles set out above.

26. The defendants submitted that the unsuccessful plaintiff’s costs should not be paid out the estate in this case because:

1. in the period when the plaintiff had foreshadowed a claim but had not yet commenced proceedings, the plaintiff had ignored three requests made by the defendants to discuss the matter with a view to avoiding the costs of legal proceedings;

2. the plaintiff subsequently rejected two offers made by the defendants, and the matter failed to settle at a Court-ordered mediation;

3. the plaintiff made one offer of compromise one month before the hearing under which, if accepted, she “would have received by far the largest share of the estate”;

4. in the month prior to the hearing, the plaintiff had unnecessarily and inappropriately incurred costs by issuing subpoenas that were said to be “unnecessary and inappropriate” and requesting “particulars & financial detail over & above the norm”. Whilst the plaintiff’s solicitor was “possibly doing what she regarded as a thorough job for her client”, these actions increased legal costs compared to the relatively small size of the estate, with the result that “the plaintiff’s costs were way over & above what should have been expended on the meagre assets pool that was available for distribution to the beneficiaries.”

27. There was no evidence of the plaintiff ignoring requests for discussions prior to the commencement of proceedings. However, the plaintiff’s submissions did not dispute that these requests had been ignored. It was submitted on behalf of the plaintiff that the defendants had resisted providing the plaintiff with a signed copy of the Inventory of Assets annexed to the grant of probate prior to the commencement of these proceedings, and that it was therefore unlikely that a meeting between the plaintiff and defendants prior to the commencement of proceedings would have been successful in resolving the dispute.

28. The offers of compromise referred to in the defendants’ written submissions were not in evidence. The plaintiffs’ written submissions referred to the same offers, adding some additional detail concerning the terms of the defendants’ offer made on 4 July 2019 to which it will be necessary to return below. The defendants did not rely on the offers, and the plaintiff’s failure to accept the defendants’ offers, in support of a submission that the plaintiff should pay their costs on an indemnity basis. The offers, together with the plaintiff’s refusal to meet with the defendants prior to the commencement of proceedings, were relied on in support of the defendants’ submission that the plaintiff’s costs should not be paid out of the deceased estate.

29. The defendants further submitted that the plaintiff should pay their costs of the proceedings because:

1. the estate is modest in size and the plaintiff knew this from the outset;

2. the plaintiff’s claim for an order designating property as notional estate was “dubious at best”;

3. until the time of the hearing, the plaintiff’s approach to the proceedings was to claim “the lion’s share of the estate” by expressing the need for her mortgage in excess of $500,000 to be paid out and a fund for her to retire comfortably;

4. the plaintiff’s expectations had diminished significantly by the time of the hearing, but her own legal fees were grossly disproportionate to the value of the estate by that time;

5. “the plaintiff has been prepared to greatly dwindle the assets of the estate, in the belief that her excessive legal fees would not have to be met by her, but by the estate. She appears to have cared not about the impact this would have on the assets of the estate & in turn the beneficiaries of the estate”;

6. “a great injustice would occur to the beneficiaries if the estate was ordered to pay costs which would have been totally unnecessary if [the plaintiff] had been reasonable enough to negotiate with [the defendants] at the outset &, having known what the estate was worth, had kept her expectations to a less selfish level”; and

7. the plaintiff has sufficient assets to fund her costs and the costs of the defendants.

Plaintiff’s submissions

30. As I have noted in [4] above, the plaintiff submitted that her costs should be paid out of the estate on the ordinary basis and the defendants’ costs should be paid out of the estate on the indemnity basis.

31. It was submitted that the costs jurisdiction of the Court under Part 3 of the Succession Act in relation to family provision matters is more flexible than under UCPR r 42.1 and that, in some circumstances, it is appropriate for an unsuccessful party to have their costs paid out of the estate. It was submitted that this was such a case because:

1. although the plaintiff’s claim was unsuccessful, it was not unreasonable, frivolous or vexatious and the claim was conducted appropriately;

2. the matter had been “marked by a failure by the Defendants to provide reasonable and complete information to the Plaintiff such that she could be confident of the extent of the estate and, therefore, what may constitute a reasonable offer”. Specifically:

1. the defendants had failed to provide a certified copy of the grant of probate with the Inventory of Property annexed, the executor’s affidavit setting out the estate’s assets and liabilities and evidence of the current balance of the assets of the estate until 1 May 2019;

1. when those materials were provided, the value attributed to the two properties was significantly less than the amount for which those properties subsequently sold, although I note that the sale price would represent the full value of each property whereas the Inventory listed the value of the deceased’s half interest. A third property was not listed on the Inventory at all. Subsequent searches by the plaintiff revealed that the third property had been sold in 2017;

2. the defendants delayed in providing detailed complete information about how the sale proceeds of that third property had been applied;

3. the plaintiff did not act unreasonably in failing to accept the defendants’ offers, due to lack of detailed information about the value of the estate at the time the offers were made and/or an unreasonable condition attached to one of the offers that the plaintiff was not to further litigate the affairs of the deceased and his wife (the plaintiff’s mother) unless she is prepared to personally fund the costs of such litigation;

4. the plaintiff had conducted the proceedings reasonably, including in issuing the subpoenas referred to in the defendants’ submissions; and

5. by contrast, the defendants had conducted the proceedings in a manner that was unreasonable and/or increased costs, including by failing to comply with certain pre-trial directions, and by raising matters during the hearing that unnecessarily occupied time (such as a late application to call oral evidence from the deceased’s wife, who resides in a nursing home and suffers from dementia).

32. I note that in their submissions in reply, the defendants disputed the allegation that they had failed to provide detailed information and asserted that it was the plaintiff who had resisted and delayed providing relevant evidence about her financial circumstances.

33. The plaintiff disputed that she had sought “the lion’s share” of the estate. The plaintiff submitted that she had merely adduced evidence of her needs in order for the Court to determine the appropriate orders having regard to the matters set out in s 60 of the Succession Act.

Consideration and determination

34. I accept the plaintiff’s submission that the Court’s costs jurisdiction in relation to family provision matters is “more flexible than under [UCPR r 42.1]”, in the sense that additional “liberality and discrimination” is to be applied in considering whether, having regard to all relevant circumstances, the overall justice of the case warrants departing from the usual rule in UCPR r 42.1 that costs follow the event. I have summarised the applicable principles above.

35. I also accept the plaintiff’s submission that her claim was not frivolous or vexatious.

36. However, the plaintiff’s claim was certainly not strong. All of the circumstances of the case that ultimately resulted in the claim being dismissed because the plaintiff had failed to establish that the deceased’s will did not make adequate provision for her proper maintenance, education and advancement in life must have been clear to the plaintiff from the outset or from very soon after the commencement of proceedings: see Judgment at [192]–[212].

37. The parties’ submissions devoted much attention to the question of the reasonableness or otherwise of the plaintiff’s conduct in commencing and maintaining the proceedings rather than reaching a compromise with the defendants before commencing the proceedings or at an early stage. However, in all the circumstances of this case, I do not regard this as a factor that has any relevance in the exercise of the costs discretion over and above the consideration that the plaintiff’s claim was not a strong one from the outset.

38. On the one hand, the plaintiff complains that she had difficulty obtaining a copy of the Inventory of Property annexed to the grant of probate and obtaining a detailed accounting from the defendants explaining how the proceeds of sale in 2017 of property owned by the deceased and his wife had been applied. On the other hand, the plaintiff was provided with the Inventory on 1 May 2019, very soon after these proceedings were commenced. Whilst the plaintiff may not previously have been aware of the 2017 sale, she must have appreciated that funds would have had to be raised from somewhere to pay for her mother’s nursing home accommodation and medical care. Had she been more involved in her parents’ care in the years prior to the death of the deceased, or had she chosen to engage in the discussions that the defendants sought to initiate prior to the commencement of these proceedings, the plaintiff would most likely also have appreciated that her parents’ living expenses (including the costs of maintaining the remaining two properties) had exceeded their aged pension income for some time. The plaintiff demanded evidence and an accounting which she ultimately received through the evidence filed and served by the defendants: see Judgment at [133]–[155]. From at least 14 June 2019 when the first of such evidence was served, the plaintiff was aware that more than half of the sale proceeds had been applied to pay the bond required to secure the nursing home accommodation for the plaintiff’s mother: see Judgment at [135].

39. On the one hand, the plaintiff’s approach to the proceedings and to negotiations with the defendants to resolve her claim may well have been infected by an attitude that she was entitled to an equal share of the estate with her sisters: see Judgment at [212]. On the other hand, it may have been difficult for the plaintiff to resolve the proceedings from the end of June 2019 onwards except on the terms stipulated in the defendants’ offer made on 4 July 2019 that the plaintiff agree not to further litigate the affairs of the deceased and his wife unless the plaintiff is prepared to personally fund the costs of such litigation. I accept the plaintiff’s submission that this term was unreasonable. For example, it would have constrained the plaintiff’s ability to make any family provision claim in the future in relation to her mother’s estate in circumstances where the merits of any such claim or the circumstances that may be relevant to the questions of the costs of any such claim could not possibly be known. The deceased’s mother is still alive.

40. I reject the defendant’s submission that the plaintiff’s evidence of her needs demonstrates that she was making a claim for “the lion’s share” of the estate. I accept the plaintiff’s submission that her evidence described her needs for the purposes of submissions being made on her behalf, and the Court ultimately determining, whether adequate provision had been made for her and, if not, what provisions should be made. The plaintiff’s submission as to what provision should be made was that she should receive an equal share of the estate with her sisters: see Judgment at [22].

41. In my opinion, the level of costs incurred by the plaintiff in prosecuting her claim was disproportionate to the value of the estate. The plaintiff’s costs of $143,600 (on the ordinary basis) amount to approximately 20.5% of the value of the estate as set out in the Inventory of Property, or approximately 23% of the value of the estate as estimated by the defendants as at the conclusion of the hearing.

42. It is neither necessary nor appropriate for the Court now to conduct an audit of the manner in which the proceeding was conducted on behalf of the plaintiff and determine whether or to what extent the high level of costs is attributable to the issue of subpoenas or requests for information criticised by the defendants, or other matters. In any event, the parties’ submissions did not provide the level of detail that would be required to undertake such an exercise. It is sufficient to observe that the total amount of costs is objectively disproportionate to the modest value of the estate which had to be distributed amongst the beneficiaries named in the will in addition to any provision ordered in favour of the plaintiff. As will be apparent from the Judgment, the case did not raise complex issues of a kind that might have warranted costs being incurred in such a disproportionate amount. The costs incurred by the plaintiff were unreasonable in all the circumstances.

43. However, I reject the defendants’ submission that the plaintiff incurred these costs as part of a conscious strategy to “greatly dwindle the assets of the estate, in the belief that her excessive legal fees would not have to be met by her, but by the estate”. There is simply no evidence about what advice the plaintiff was given concerning potential costs orders if her claim did not succeed. There is no basis for assuming or inferring that she would have been advised otherwise than in accordance with the applicable principles that I have summarised above.

44. I do not accept the plaintiff’s submission that the manner in which the defendants conducted the proceedings or the hearing materially contributed to the very high costs incurred by the plaintiff. Assuming that the defendants failed to comply with some pre-trial directions as the plaintiff submitted, the submissions did not identify how this was said to have increased the plaintiff’s costs. It is correct that the defendants unsuccessfully sought to adduce certain evidence during the hearing, but that did not significantly increase the hearing time and the hearing still concluded within the three days that had been set aside. It is fair to say that time was taken by each party in cross-examining the other party’s witnesses about matters of detail that ultimately had little to do with the merits and outcome of the claim: see Judgment at [44].

45. Taking all of those matters into account and applying the principles set out earlier in these reasons, I have concluded that the overall justice of this case does not warrant a departure from the usual rule that costs follow the event. The plaintiff’s claim, which was not a strong claim from the outset, has failed. The defendants were required to incur the costs of defending the estate from the claim, and the plaintiff incurred very significant costs in prosecuting the claim. There is no reason in this case why the burden of those costs should be borne by the estate (and therefore by the beneficiaries) rather than by the unsuccessful plaintiff.

Conclusions and orders

46. For the reasons above, I make the orders set out in [6] above.

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Endnotes

Decision last updated: 04 November 2020