Wehbe v Giotopoulos (No 2)

The case of Wehbe v Giotopoulos (No 2) involved a dispute regarding the costs in a contested probate matter. The deceased, Maria Wehbe, left a will that excluded her son, the defendant George Giotopoulos, and bequeathed her estate to her sister and her husband, the plaintiffs. The defendant challenged the validity of the will on the basis of undue influence, which was ultimately unsuccessful. The plaintiffs rejected both a Calderbank letter and an offer of compromise made under the UCPR r 20.26. The central legal issues before the court were whether there was any reason to deviate from the usual order that costs follow the event and whether the defendant should be awarded indemnity costs against the plaintiffs, as well as an indemnity out of the deceased estate for costs not recoverable from the plaintiffs.

The court found that the defendant's judgment was no less favourable than the terms of the offer of compromise. As a result, the usual order that costs follow the event should be upheld. The court also ruled that the defendant was entitled to indemnity costs against the plaintiffs under UCPR r 42.15A(2) due to the unsuccessful challenge of the will. Furthermore, the court determined that the defendant was entitled to an indemnity out of the deceased estate to the extent that his costs were not recoverable from the plaintiffs. The reasoning was that the defendant's unsuccessful challenge did not prevent him from obtaining a favourable judgment, and thus, the plaintiffs' rejection of the offers of compromise justified the costs orders in favour of the defendant.

The court ordered that George Giotopoulos was entitled to indemnity costs against the plaintiffs, as well as an indemnity out of the deceased estate, up to the amount of his costs not recoverable from the plaintiffs. This decision underscores the importance of offers of compromise in litigation, particularly in probate matters, and highlights the consequences for parties who reject such offers without sufficient justification.