Marley v. Rawlings & Anor (Rev 2)

Summary

Trinity Term
[2014] UKSC 51
On appeal from: [2012] EWCA Civ 61

JUDGMENT

Marley (Appellant)v Rawlings and another (Respondents) (Costs)

Lord Neuberger
Lord Clarke
Lord Sumption
Lord Carnwath
Lord Hodge

JUDGMENT GIVEN ON

18^th September 2014

Heard on 3 December 2013

Appellant
Robert Ham QC
Teresa Rosen Peacocke
(Instructed by Hugh Cartwright & Amin)

Respondents
Nicholas Le Poidevin QC
Alexander Learmonth
(Instructed by Gillan & Co)

LORD NEUBERGER (WITH WHOM LORDS CLARKE, SUMPTION, CARNWATH AND HODGE AGREED):

Introductory

On 22 January 2014, we gave judgment in Marley v Rawlings [2014] UKSC 2, [2014] 2 WLR 213, in which we allowed Mr Marley's appeal against the Court of Appeal's dismissal of his appeal against the decision of Proudman J. She had refused to admit to probate a document as the validly executed will of Alfred Rawlings ("the will"). On its face, this document appeared to be the will of his late wife (who had predeceased him), but it had been signed by Mr Rawlings. This was because, when the solicitor who had drafted the wills ("the Solicitor") had visited the couple for the purpose of executing their wills, Mr and Mrs Rawlings had accidently been presented with, and each had signed, the will intended for the other. Mr Marley was the residuary beneficiary under the will, if it was valid, whereas the two sons of Mr and Mrs Rawlings ("the respondents") would have inherited on an intestacy.

The issue which arises now is how the costs of the proceedings should be allocated. Mr Marley's primary contention is that the respondents should pay his costs of the proceedings, including the two appeals, in addition, of course, to having to pay their own costs. The respondents, on the other hand, contend that the costs of Mr Marley and the respondents should be paid out of the late Mr Rawlings's estate, or, in the alternative, that those costs should be ordered to be paid by the Solicitor, as he was responsible for the unfortunate error. The Solicitor is, of course, insured against such liabilities. Those insurers have also made submissions on costs, and they contend that the respondents should pay Mr Marley's costs.

These submissions all have to be seen in the light of the fact that the value of Mr Rawlings' estate ("the estate") is in the region of £70,000.

The position is complicated by the fact that, in the Supreme Court, the respondents' solicitors and two counsel were each acting under a conditional fee agreement (a "CFA"), although they were acting on the traditional basis in the Court of Appeal and at first instance. I will first address the position on the assumption that the respondents' solicitors and two counsel were acting on a traditional basis throughout (which will dispose of the costs below), and will then turn to the costs in the Supreme Court in the light of the CFAs.

The position disregarding the CFAs

JUDGMENT