Wharton v Bancroft & Ors [2012] EWHC 91 (Ch) (30 January 2012)

Wharton v Bancroft & Ors [2012] EWHC 91 (Ch) (30 January 2012)

The Daughters' challenge to the 2008 Will was not caused by the testator or by Maureen Wharton, but by the Daughters' refusal to accept clear evidence. Their case was weak, aggressively pursued, and did not justify displacing the general rule as to costs. Maureen is entitled to her costs on the indemnity basis, both before and after the Part 36 offer, with interest at 8% from 7 May 2010. The Daughters must also pay the executors' costs on the indemnity basis. Interim payments are justified based on the evidence of costs incurred.

Citation
[2012] EWHC 91 (Ch)
Parties
Claimant: Maureen Wharton; First Defendant: Timothy John Bancroft; Second Defendant: James William Douglas Bancroft; Third Defendant: Victoria Wharton; Fourth Defendant: Gina Fagan; Fifth Defendant: Amanda Wharton
Jurisdiction
England and Wales
Judgment Date
30 January 2012
Procedural Posture
Probate Action (costs Judgment) / Post Trial, Costs Determination
Outcome
Costs awarded to Maureen Wharton and executors on the indemnity basis; interim payments ordered; interest awarded at 8% on Maureen's costs from 7 May 2010.
Legal Topics
Costs, Wills, Undue Influence, Knowledge and Approval, Part 36 Offers, Indemnity Costs
Probate Civil Procedure Costs Wills Undue Influence Knowledge and Approval Part 36 Offers Indemnity Costs

Case Brief

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Parties

Maureen Wharton

Claimant

Timothy John Bancroft

First Defendant

James William Douglas Bancroft

Second Defendant

Victoria Wharton

Third Defendant

Gina Fagan

Fourth Defendant

Amanda Wharton

Fifth Defendant

Procedural Posture

Probate Action (costs Judgment) / Post Trial, Costs Determination

Legal Issues

  1. 1 Whether costs should follow the event or be paid out of the estate
  2. 2 Whether conduct of parties justifies indemnity costs
  3. 3 Whether Part 36 offer consequences apply

Ratio Decidendi

The Daughters' challenge to the 2008 Will was not caused by the testator or by Maureen Wharton, but by the Daughters' refusal to accept clear evidence. Their case was weak, aggressively pursued, and did not justify displacing the general rule as to costs. Maureen is entitled to her costs on the indemnity basis, both before and after the Part 36 offer, with interest at 8% from 7 May 2010. The Daughters must also pay the executors' costs on the indemnity basis. Interim payments are justified based on the evidence of costs incurred.

Court Disposition

Costs awarded to Maureen Wharton and executors on the indemnity basis; interim payments ordered; interest awarded at 8% on Maureen's costs from 7 May 2010.

Orders

  • Daughters to pay Maureen Wharton's costs of the action and counterclaim on the indemnity basis, to be assessed.
  • Daughters to pay Maureen Wharton interest at 8% on her costs incurred after 7 May 2010.