Bupa Care Services NZ Limited v Gillibrand
[2013] NZHC 3067
•20 November 2013
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CIV 2011-488-557 [2013] NZHC 3067
IN THE MATTER OF the Administration Act 1969
BETWEEN BUPA CARE SERVICES NZ LIMITED Applicant
ANDCHRISTIAN JOHN GILLIBRAND Respondent
Hearing: 15 November 2013 (by audio-visual link)
Counsel: A N Isac and R M Vokes for Bupa Care Services NZ Ltd
A P Holgate and G P Swanepoel for Mr Gillibrand
Judgment: 20 November 2013
JUDGMENT OF HEATH J
This judgment was delivered by me on 20 November 2013 at 11.00am pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
SwanLaw, Whangarei Gibson Sheat, Wellington Counsel:
A Holgate, Whangarei
BUPA CARE SERVICES NZ LIMITED v GILLIBRAND [2013] NZHC 3067 [20 November 2013]
The applications
[1] On 16 August 2013, I made an order removing Mr Christian Gillibrand as executor of the estate of his late father, Mr Gordon Gillibrand (Mr Gillibrand snr). Mr Stuart Henderson, a senior lawyer in Whangarei, was appointed in his place.1
Costs were reserved.
[2] Both Bupa and Mr Gillibrand seek costs. Bupa’s claim is for increased or indemnity costs,2 primarily on the grounds that baseless allegations were made against it that, while not relevant to its application, raised serious reputational questions to which it had to respond. Mr Gillibrand’s claim rests on an offer that he made on 15 March 2013 to retire as executor and to be replaced by Public Trust; an offer that Bupa did not accept.
The substantive litigation
[3] Bupa operates the Kauri Coast Rest-Home and Hospital in Dargaville. Mr Gillibrand snr was resident in that facility from May 2003.
[4] Mr Gillibrand snr died on 12 April 2011, in Bupa’s care. Probate of his estate was granted in favour of his son, on 14 July 2011. At the time of Mr Gillibrand snr’s death Bupa was owed $51,759. It is accepted that that sum has been calculated correctly, in accordance with the contractual arrangements in place.
[5] As I held in my substantive judgment, Mr Gillibrand was, throughout, conflicted in his role as executor. As a matter of law, he owed a duty to pay all “just debts” of his late father and to ascertain whether they were payable by conducting an independent and impartial assessment of the claim.3 It was difficult, if not impossible, for Mr Gillibrand to perform his function in that manner. First, he had formed a clear view that his father’s death had been “caused” by Bupa’s (alleged)
inadequate care of him. Second, it was in his personal interests to resist the claim
because the only asset of the estate was a debt that he owed, in his capacity as a
1 Bupa Care Services NZ Ltd v Gillibrand [2013] 3 NZLR 701 (HC) at para [26](a) and (b).
2 High Court Rules, r 14.6(3) and (4).
3 Bupa Care Services NZ Ltd v Gillibrand [2013] 3 NZLR 701 (HC) at paras [10]–[13] and [17]–
[22].
trustee of the Chris and Mary Gillibrand Family Trust. If Bupa were to be paid, it was necessary for Mr Gillibrand to arrange payment from that source.
[6] On the merits, I held that Bupa had made out a case for removal because:4
[21] ...
(a) A removal order is required to ensure that the estate is properly administered. An executor is required to execute the terms of the Will. The late Mr Gillibrand’s Will requires all debts of the estate to be paid before distributions are made to beneficiaries.
(b) An independent and impartial mind must be applied in assessing whether a debt is validly claimed. Decision- making should not be clouded either by emotional or (personal) financial considerations.
(c) Mr Gillibrand’s ability to bring an independent mind to the question whether the debt is valid is questionable, to say the least. He has strongly held views (not presently substantiated in any meaningful way) about the impact of Bupa’s care on his father, believing it was causative of death. He also has financial interests to protect; both as sole beneficiary of the estate and the trustee (and beneficiary) of a Trust, a debt from which is the only source from which money could be recovered to pay Bupa.
(d) In any event, even if the Bupa claim were permitted to proceed to trial, with Mr Gillibrand defending it on behalf of the estate, a successful claim would undoubtedly require Mr Gillibrand to retire as personal representative, given that he would need to sue himself to recover any debt owed by the Trust. Questions have also been raised about whether that debt was forgiven by Mr Gillibrand snr. They too require independent consideration.
Background facts
[7] Bupa’s application to remove Mr Gillibrand as executor of his late father’s estate was filed on 21 August 2012. In his initial notice of opposition, Mr Gillibrand pleaded:
2. The grounds on which the respondent opposes the making of the order(s) are as follows:
4 Ibid, at para [21](a)–(d).
(a) Christian John Gillibrand was appointed the executor of his father’s Will dated 19 February 2003. Probate was applied for and granted on 13 July 2011.
(b) Christian John Gillibrand is also the sole beneficiary of the
deceased’s Will.
(c) The executor recognises the debt owing to BUPA, but the estate has no funds to pay. The Will is therefore proved.
(d) Clause 10 of the Will empowers the executor, in its absolute discretion, to postpone the sale and conversion of real; and personal estate or any part thereof for so long as he in his absolute discretion thinks fit notwithstanding that the same may be of a hazardous, speculative, terminating, or wasting nature, without being answerable for any loss or diminution in value occasioned by such postpone.
(e) Further, as set out in the affidavit of Christian John
Gillibrand filed herein in support.
[8] The application came before me for directions on 10 October 2012. I raised the questions of conflict at that time and put to counsel a proposition that would involve independent investigation of the debt. I said:5
[2] The primary concern revolves around a debt that Bupa alleges is payable by the estate to it, relating to the cost of care received by the late Mr Gillibrand in a care facility operated by Bupa. The debt alleged is approximately $47,000. Bupa’s position is that the estate can meet the debt if it were to call up an obligation, totalling approximately $355,000, that is owed by the trustees of the Chris and Mary Gillibrand Trust (the Family Trust) to the estate. That latter debt is said by Mr Gillibrand to have effectively been forgiven during his father’s lifetime. His co-trustees of the Family Trust have declined to make payment.
[3] Mr Gillibrand, because he holds positions as a trustee on both sides of the fence, finds himself in a difficult and conflicted situation. As I indicated to counsel this morning, the case seems to me to be one that calls out for the appointment of someone independent to investigate whether a debt is payable by the trustees of the Family Trust to the estate and, if so, whether anything material can be recovered.
[4] After having put that possibility to counsel this morning, I gave an opportunity for them to take instructions on whether an accommodation could be reached whereby an independent trustee was appointed, as an additional trustee of the estate, for the limited purpose of investigating the two aspects of the alleged debt between the Family Trust and the estate to which I have referred. My suggestion was that the additional trustee then report back to the Court with a report on which both parties could then be
heard before determining what, if anything, further needed to be done on the present application.
[9] Subsequently, Public Trust was appointed as an additional and independent trustee of the estate for the limited purpose of investigating whether the debt was payable. Timetabling orders enabling its investigations to proceed were made on 4
December 2012.6 A report was given by the Public Trustee to the effect that Bupa’s
debt was owing. It was not accepted by Mr Gillibrand. Public Trust’s appointment was, at that time, spent. It is clear that the lack of any significant inquiries by Public Trust of Mr Gillibrand in relation to the alleged Bupa debt influenced Mr Gillibrand’s decision not to accept the report.
[10] On 15 March 2013, Mr Holgate, counsel for Mr Gillibrand, wrote to the solicitors for Bupa in relation to the removal application. It appears to have been written after receipt of the report from Public Trust before Mr Gillibrand’s position on it was communicated to the Court. Mr Holgate contends that the letter amounts to a written offer, made without prejudice except as to costs, to which the Court is entitled to give significant weight, on a costs application.
[11] Mr Holgate wrote:
Estate G J Gillibrand:
Further to our phone discussions I can advise that:
We will be providing a response to the Court about the Public Trust report for the sake of completeness.
As a pragmatic step forward I also propose without prejudice that we provide a Joint Memorandum to the Court as follows:
oWithout admitting any liability, the Respondent, Chris Gillibrand, will step aside as the administrator of his father’s estate;
o The Public Trust can then step into the shoes of Mr
Gillibrand as administrator of the estate;
oCosts can be dealt with by agreement or on the submission of Memoranda after the litigation mentioned below is concluded.
oWithin the next month Mr and Mrs Gillibrand will file proceedings in terms of Part 18 of the High Court Rules for declaratory relief against the estate and BUPA Care Services Ltd.
[12] On 18 March 2013, the solicitors for Bupa responded to Mr Holgate on the question of who would indemnify Public Trust for their fees in relation to administration of the estate. Ms Vokes, of that firm, wrote:
...
I just spoke with [Mr Swanepoel (Mr Holgate’s instructing solicitor)]
regarding the issue of who would indemnify Public Trust for their fees.
Leaving aside the issue of costs incurred on the current application we need to consider how to address costs that Public Trust will incur if it is appointed executor of Mr Gillibrand’s estate.
Given that the estate has no ready funds to pay the executors costs, if Public
Trust is appointed it will need to be indemnified in respect of costs it incurs.
I need to take Bupa’s instructions and confirm what, if any, indemnity it is willing to give Public Trust. However, I assume it will not indemnify Public Trust in respect of any application, Mr Gillibrand or the trustees make seeking declaratory orders against the executors/Public Trust. Please confirm what indemnity your clients will give Public Trust.
Also, please clarify what applications your clients will be making, on what grounds, and against who?
[13] On 12 April 2013, Mr Holgate responded to Ms Vokes letter, saying:
Have discussed your proposal the other day with [Mr Swanepoel]. We are both a bit concerned about 1 aspect, and that is – if Chris Gillibrand steps aside to avoid a conflict of interest, any decision that he made to bind the estate to cover costs would be voidable because it would arguably be a decision in self-interest – rather than end up in that circular argument, would it not be better to get a preliminary view from the Public Trust about whether they would entertain your client’s claim?
[14] At some time after that correspondence, Bupa signalled an intention to issue proceedings to recover the debt payable to it. On 7 May 2013, during the course of a case management conference, I made it clear to counsel that while the removal application might require some discussion of the debt issue, on the (then) “current state of the pleadings it will not be possible to resolve whether a debt is actually due
and payable; particularly if a counterclaim is contemplated by the estate for failing to take care of Mr Gillibrand snr”.7
[15] Negotiations broke down. Mr Gillibrand decided to contest the removal application, with some vigour. Not only did he contend that he was able to execute his office appropriately, but he made serious (and inflammatory) allegations in relation to Bupa’s conduct in entering into the contract for care with his late father and acts or omissions which allegedly caused his father’s death.
[16] In a second notice of opposition, filed on 23 May 2013, Mr Gillibrand pleaded:
...
2.2BUPA claims that its debt arises by virtue of a contract entered into with [Mr Gillibrand snr] on a date that has not been disclosed;
2.3The respondent disputes the validity of this agreement; more particularly:
2.3.1The agreement was made under duress, alternatively, undue influence; and
2.3.2[Mr Gillibrand snr] lacked contractual capacity to enter into any agreement;
2.4BUPA is precluded from claiming payment for its services because [Mr Gillibrand snr] died due to its negligence in providing these services; more particularly;
2.4.1[Mr Gillibrand snr] had chronic bronchitis or quite possibly cardio pulmonary obstructive disease COPD;
2.4.2[Mr Gillibrand snr] was placed at a wide open window when the cold air coming in exacerbated his condition and increased the distress that he [was] in, and when he could not move himself out of the draft;
2.4.3BUPA failed to monitor [Mr Gillibrand snr] when he was in significant distress, and had it done, the death could have been averted;
2.4.4BUPA failed to take steps to treat [Mr Gillibrand snr], to move him or otherwise provide relief when they were alerted to [Mr Gillibrand snr’s] obvious distress and when had they done this the death would have been averted;
7 Bupa Care Services NZ Ltd v Gillibrand HC Whangarei CVIV-2012-488-577, (Minute (No. 4)),
2.4.5BUPA failed to provide proper medical care or ensure that the deceased was taken to a hospital or healthcare provider who could treat [Mr Gillibrand snr’s] condition when had it done so, the death would have been averted.
2.4.6Alternatively and in the event that [Mr Gillibrand snr] was terminally ill with COPD or any other condition BUPA’s negligence brought the death of [Mr Gillibrand snr] forward and shortened his life, and as such there is a causal link between BUPA’s conduct and the death of [Mr Gillibrand snr].
...
2.6BUPA is precluded from claiming payment for its services, because its treatment of [Mr Gillibrand snr] was inhuman and degrading treatment and or punishment, more particularly:
2.6.1That at least once [Mr Gillibrand snr] was placed in a position that would exacerbate his condition with total disregard to the distress and agony this would cause;
2.6.2[Mr Gillibrand snr] was effectively left to drown on the mucous in his lungs, alternatively left in great distress with callous disregard to the distress that he was in.
...
2.8In all the circumstances BUPA seeks reward from [Mr Gillibrand snr] for killing him. This is both an absurd claim and a clear instance of trying to take advantage of its own wrongdoing.
....
[17] Given the nature of the allegations made against their client, the solicitors for
Bupa responded to Mr Holgate in commendably moderate terms. In a letter dated 30
May 2013, Bupa’s solicitors emphasised the limited nature of the application to remove, set out applicable legal principles and rejected the “unsubstantiated” allegations made by Mr Gillibrand, which they characterised as amounting “to imputations of a criminal nature and could not be more serious”. The solicitors also drew Mr Holgate’s attention to his professional obligation not to draw pleadings that make serious allegations of that type without being satisfied that they had a sufficient
evidential foundation.8
8 Citing Rondel v Worsley [1969] 1 AC 191 (HL) at 227 and 231 (Lord Reid) and Gazley v
[18] Mr Gillibrand took time to reflect on his position. A third notice of opposition was filed on 7 June 2013. The allegations were maintained. Some reliance was placed on personal observations made by a visitor, Mr Frank Nola, the day before Mr Gillibrand snr died. Mr Nola had observed that Mr Gillibrand snr “was struggling to breathe”, “constantly trying to clear the phlegm from his throat”, “was getting weaker and weaker, and yet nobody seemed to be paying any attention”. The relevance of that evidence is that Mr Gillibrand snr died the following day as a result of pneumonia contracted within 24 hours of his death.
[19] Based on that evidence and medical notes to which Mr Gillibrand had gained access, the revised notice of opposition pleaded:
The first ground of opposition: An unequivocal liability:
2.11 BUPA claims that it has a valid debt against [Mr Gillibrand snr’s]
Estate which is due, owing and payable.
2.12[Mr Gillibrand] disputes that [Mr Gillibrand snr’s] Estate is liable to Bupa for the debt or at all because Bupa was culpable for causing [Mr Gillibrand snr’s] death and should not be allowed to benefit by claiming reward for the reasons that follow below.
2.13[Mr Gillibrand snr] was placed at a wide open window when the cold air coming in exacerbated his pneumonia and increased the distress that he [was] in, and when he could not move himself out of the draft;
2.14BUPA failed to monitor [Mr Gillibrand snr] when he was in significant distress, and had it done, the death could have been averted;
2.15 On being warned of [Mr Gillibrand snr’s] plight BUPA and its staff
failed to:
2.15.1 Take steps to treat [Mr Gillibrand snr]
2.15.2 Move [Mr Gillibrand snr] to a safer place;
2.15.3 Provide care including medication, a medical examination or pain relief when had they done this the death would have been averted.
2.16On being warned of [Mr Gillibrand snr’s] plight BUPA and its staff showed contumelious disregard for [Mr Gillibrand snr’s] rights and circumstances by refusing point-blank to take any steps at all.
2.17Alternatively to negligence, the facts and circumstances outlined above mean that BUPA has come to Court without clean hands and
is precluded from obtaining the relief it currently seeks or any other relief.
The Second ground of Opposition: Inhuman and degrading treatment:
2.18BUPA is precluded from claiming payment for its services, because its treatment of [Mr Gillibrand snr] was inhuman and degrading treatment and or punishment, more particularly:
2.18.1 That at least once [Mr Gillibrand snr] was placed in a position that would exacerbate his condition with total disregard to the distress and agony this would cause;
2.18.2 [Mr Gillibrand snr] was effectively left to drown on the fluid in his lungs, alternatively left in great distress with callous disregard to his plight.
Costs against Mr Gillibrand’s legal advisers
[20] Initially, Bupa indicated that it wished to claim costs against Mr Gillibrand’s solicitor and counsel, having regard to the way in which the litigation had been conducted and the additional costs thrown upon it by reason of the reputational issues that Mr Gillibrand advanced. Subsequently, that aspect of the claim was withdrawn. Instead, Bupa’s lawyers have made a complaint about the conduct of Mr Swanepoel and Mr Holgate. That is progressing through the disciplinary processes of the Lawyers and Conveyancers Act 2007. In addition, at the commencement of the substantive hearing, I had expressed my views to Mr Holgate about the nature of some of the allegations and correspondence in strong terms.
[21] As the question of conduct of the lawyers is before their professional body, I do not propose to comment further on that aspect. Nevertheless, given the nature of the costs order which I shall be making, it will be for the lawyers to reflect on who should bear the burden of them, having regard to the nature of advice given and instructions received. In the absence of evidence to the contrary, I proceed on the basis that Mr Gillibrand expressly instructed his solicitor and counsel to make the allegations in issue.
Analysis
[22] Up to the time of the letter of 15 March 2013, sensible steps appear to have been taken to resolving the litigation. While Mr Gillibrand disputed the need for him
to step aside as executor, he was doing so on conventional grounds.9 When agreement was not reached in terms of the letter of 15 March 2013, the situation was greatly inflamed by the allegations made by Mr Gillibrand of Bupa’s conduct. While I accept that Mr Gillibrand honestly believed that what he was saying was true, there was no plausible narrative on which those allegations could properly rest.10
[23] I begin by considering the status of the letter of 15 March 2013.11 I do so in the context of r 14.10 of the High Court Rules:
14.10 Written offers without prejudice except as to costs
(1) A party to a proceeding may make a written offer to another party at any time that—
(a) is expressly stated to be without prejudice except as to costs;
and
(b) relates to an issue in the proceeding.
(2) The fact that the offer has been made must not be communicated to the court until the question of costs is to be decided.
[24] Mr Holgate’s letter did not expressly state that it was to be without prejudice except as to costs. Nor did it make any meaningful suggestions about who would bear the costs of Public Trust if it were to become a replacement executor.12 The costs incurred in the litigation were for further negotiation.
[25] In Health Waikato Ltd v van der Sluis,13 the Court of Appeal made it clear that any offer which is intended to be without prejudice except as to costs should be made clearly and unambiguously. Settlement offers must be spelt out unequivocally. The offer must state whether or not it includes costs. In my view, the proposal made by Mr Holgate does not meet those criteria. While, for contextual purposes, the letter can be taken into account on costs, I do not consider that it can be given any
significant weight.
9 See para [11] above.
10 Bupa Care Services NZ Ltd v Gillibrand [2013] 3 NZLR 701 (HC) at para [2].
11 See para [11] above.
12 See paras [11]–[13] above.
13 Health Waikato Ltd v van der Sluis (1997) 10 PRNZ 514 (CA) at 522.
[26] I am satisfied that the allegations made by Mr Gillibrand from the date on which the second notice of opposition was filed on 23 May 2013 justify either increased or indemnity costs. The allegations were based (initially) on speculation and (later) on relatively flimsy evidence. The furthest the evidence of Mr Nola could go was to raise some questions about the standard of care that Mr Gillibrand snr received on the final day of his life. The evidence went nowhere near creating a foundation for the serious allegation that the standard of Bupa’s care had caused Mr Gillibrand snr’s death. The nature of that allegation necessarily required Bupa to respond and, in doing so, to incur costs far in excess of those that one would ordinarily expect to enforce a debt of just over $50,000.
[27] Further, the allegations in relation to Bupa’s care were never relevant to the application to remove Mr Gillibrand as an executor. The question was always whether Mr Gillibrand was sufficiently independent and impartial to carry out his duties as an executor, in identifying debts to be paid and ensuring assets of the estate were realised to meet them. The focus, as the solicitors for Bupa pointed out to
Mr Holgate in their letter of 30 May 2013,14 was on Mr Gillibrand’s ability to fulfil
that function. The proceeding was not designed to determine whether any debt was owed by the estate to Bupa.15 In those circumstances, the serious allegations raised to support an alleged counterclaim simply evidenced the state of hostility that had developed between Mr Gillibrand and Bupa. From Mr Gillibrand’s perspective, that was a negative factor on the removal application.
[28] Rule 14.6(3) and (4) of the High Court Rules sets out the circumstances in which either increased or indemnity costs may be ordered. For present purposes, r 14.6(3)(b) and (4)(a) and (f) are relevant:
14.6 Increased costs and indemnity costs
...
(3) The court may order a party to pay increased costs if—
...
14 See para [17] above.
15 Bupa Care Services NZ Ltd v Gillibrand [2013] 3 NZLR 701 (HC) at para [21], set out at para
[6] above. See also, para [17] above.
(b) the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—
(i) failing to comply with these rules or with a direction of the court; or
(ii) taking or pursuing an unnecessary step or an argument that lacks merit; or
(iii) failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument; or
(iv) failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules; or
(v) failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule 14.10 or some other offer to settle or dispose of the proceeding; or
...
(4) The court may order a party to pay indemnity costs if—
(a) the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding; or
...
(f) some other reason exists which justifies the court making an order for indemnity costs despite the principle that the determination of costs should be predictable and expeditious.
[29] In Bradbury v Westpac Banking Corporation,16 the Court of Appeal commented on the circumstances in which either increased or indemnity costs might be ordered. Delivering the judgment of the Court, Baragwanath J observed:17
[27] The distinction among our three broad approaches – standard scale costs, increased costs and indemnity costs – may be summarised broadly:
(a) standard scale applies by default where cause is not shown to depart from it;
16 Bradbury v Westpac Banking Corporation [2009] 3 NZLR 400 (CA).
17 Ibid, paras [27]–[29]. The reference in para [29](e) to “French J’s ‘hopeless case’ test” is to a decision of the present Chief Justice of Australia in J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers, Western Australian Branch (No 2) (1993) 46 IR 301 at
303, set out at para [23] of Bradbury.
(b) increased costs may be ordered where there is failure by the paying party to act reasonably; and
(c) indemnity costs may be ordered where that party has behaved either badly or very unreasonably.
[28] ... Our three-stage classification, with a discretion in each class as to where the order should be pitched, accords with that approach. Indemnity costs, which depart from the predictability of the Rules Committee’s regime, are exceptional and require exceptionally bad behaviour. That is why to justify an order for such costs the misconduct must be “flagrant” (Prebble v Awatere Huata (No 2) [2005] 2 NZLR 467 (SCNZ) at para [6]).
[29] We therefore endorse Goddard J’s adoption in Hedley v Kiwi Co- operative Dairies Ltd (2002) 16 PRNZ 694 at para [11] of Sheppard J’s summary in Colgate-Palmolive Co v Cussons at pp 232 – 234. While recognising that the categories in respect of which the discretion may be exercised are not closed (see r 14.6(4)(f)), it listed the following circumstances in which indemnity costs have been ordered:
(a) the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud;
(b) particular misconduct that causes loss of time to the court and to other parties;
(c) commencing or continuing proceedings for some ulterior motive;
(d) doing so in wilful disregard of known facts or clearly established law; or
(e) making allegations which ought never to have been made or unduly prolonging a case by groundless contentions, summarised in French J’s “hopeless case” test.
[30] Once Mr Gillibrand accepted that (in the absence of a successful set-off or counterclaim) Bupa’s debt was payable, and a state of hostility was accepted as existing between himself and Bupa, any defence to the removal application that was based on the possibility of raising a set-off or counterclaim on the grounds that Bupa acted in a manner that was causative of Mr Gillibrand snr’s death was “hopeless”, in the sense used in Bradbury v Westpac Banking Corporation.18 In my view, this brings the case squarely within the category of cases that demand imposition of indemnity costs for making serious unsubstantiated allegations that put the
reputation of the other party in issue.19
18 Ibid, at para [29](e).
19 Ibid.
[31] Given the way in which the litigation was conducted up to 23 May 2013,20 I consider that Bupa should have costs on a 2B basis, together with reasonable disbursements, to that date, with indemnity costs thereafter.
[32] I do not have any concern about the figures put before the Court representing the actual costs incurred by Bupa. I consider that, given the reputational allegations with which it was confronted, it was reasonable for Bupa to incur those costs, and on occasion to have second counsel appear.
Result
[33] On the removal application, costs are awarded in favour of Bupa against Mr Gillibrand on a 2B basis, together with reasonable disbursements, up to and including 23 May 2013. Thereafter, Bupa is entitled to indemnity costs (including reasonable disbursements), to be paid by Mr Gillibrand. For hearings after 23 May
2013 at which two counsel appeared, I certify for second counsel.
[34] The precise sum payable shall be fixed by the Registrar. Any queries concerning the actual amount of indemnity costs to be awarded, given the limited period for which I have indicated they are payable, shall be referred to me for decision on the papers.
[35] Mr Henderson, the present executor, abided the decision of the Court on costs. There may be an issue as to whether Mr Gillibrand, having regard to the nature of his conduct, should be entitled to an indemnity out of the estate for the costs that have been ordered. That issue should be discussed between Mr Henderson
and Mr Gillibrand’s advisers in the first instance.
P R Heath J
Delivered at 11.00am on 20 November 2013
20 Being the date on which the second notice of opposition was filed, see para [16] above.
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