Wharton v Bancroft & Ors

Wharton v Bancroft & Ors

The Daughters are to pay Maureen Wharton's and the executors' costs on the indemnity basis because the litigation was not caused by the testator or Maureen, the Daughters' case was weak and aggressively pursued, and Maureen's Part 36 offer was genuine and exceeded by the judgment. Interest at 8% is awarded on Maureen's post-7 May 2010 costs. Interim payments are ordered for both Maureen and the executors.

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 / Costs Judgment After Trial
Outcome
Costs judgment for Claimant and Executors against Daughters
Legal Topics
Costs, Indemnity Costs, Part 36 Offers, Executor Costs, Undue Influence, Knowledge and Approval
Probate Civil Procedure Costs Indemnity Costs Part 36 Offers Executor Costs Undue Influence Knowledge and Approval

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 / Costs Judgment After Trial

Legal Issues

  1. 1 Whether costs should follow the event or be paid out of the estate
  2. 2 Whether indemnity costs are justified
  3. 3 Whether the conduct of the parties warrants a departure from the general rule on costs

Ratio Decidendi

The Daughters are to pay Maureen Wharton's and the executors' costs on the indemnity basis because the litigation was not caused by the testator or Maureen, the Daughters' case was weak and aggressively pursued, and Maureen's Part 36 offer was genuine and exceeded by the judgment. Interest at 8% is awarded on Maureen's post-7 May 2010 costs. Interim payments are ordered for both Maureen and the executors.

Court Disposition

Costs judgment for Claimant and Executors against Daughters

Orders

  • Daughters to pay Maureen Wharton's costs of the action and counterclaim on the indemnity basis, subject to detailed assessment if not agreed
  • Daughters to pay Mr Bancroft's (executor's) costs of the action and counterclaim on the indemnity basis, subject to detailed assessment if not agreed