Luke Ellis v Stephen Ellis & Ors

Luke Ellis v Stephen Ellis & Ors

The court held that the general rule that costs follow the event applies, as the unsuccessful party (Vivian Care) did not establish a strong factual basis for the probate exceptions. The Part 36 offer made by Luke Ellis was valid and a genuine attempt to settle, entitling him to the consequences under CPR 36.17, subject to a reduction in interest rate on costs. The executors' litigation costs are to be paid by Vivian Care, as his challenge to the Will necessitated their involvement. Payment on account of costs is ordered at 90% for Luke Ellis and 85% for the executors.

Parties
Claimant: Luke Ellis; First Defendant (executor): Stephen Ellis; Second Defendant (executor): Stephen Berryman; Third Defendant: Vivian Care
Jurisdiction
England and Wales
Judgment Date
14 October 2025
Procedural Posture
Probate Dispute / Costs Judgment Following Substantive Judgment
Outcome
Costs awarded to Luke Ellis and executors against Vivian Care; Part 36 consequences applied with adjustment; payment on account ordered.
Legal Topics
Costs, Part 36 Offers, Probate Exceptions, Testamentary Capacity, Due Execution, Proprietary Estoppel, Mediation/adr
Probate Trusts Civil Procedure Costs Part 36 Offers Probate Exceptions Testamentary Capacity Due Execution +2 more

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Parties

Luke Ellis

Claimant

Stephen Ellis

First Defendant (executor)

Stephen Berryman

Second Defendant (executor)

Vivian Care

Third Defendant

Procedural Posture

Probate Dispute / Costs Judgment Following Substantive Judgment

Legal Issues

  1. 1 Whether costs should follow the event or depart due to probate exceptions
  2. 2 Validity and effect of Part 36 offer
  3. 3 Reasonableness of conduct regarding pre-action protocol and mediation

Ratio Decidendi

The court held that the general rule that costs follow the event applies, as the unsuccessful party (Vivian Care) did not establish a strong factual basis for the probate exceptions. The Part 36 offer made by Luke Ellis was valid and a genuine attempt to settle, entitling him to the consequences under CPR 36.17, subject to a reduction in interest rate on costs. The executors' litigation costs are to be paid by Vivian Care, as his challenge to the Will necessitated their involvement. Payment on account of costs is ordered at 90% for Luke Ellis and 85% for the executors.

Court Disposition

Costs awarded to Luke Ellis and executors against Vivian Care; Part 36 consequences applied with adjustment; payment on account ordered.

Orders

  • Vivian Care to pay Luke Ellis' costs on indemnity basis from 6 February 2024, standard basis before then, subject to 'no order as to costs' periods for pre-August 2021 and attestation issue to 15 March 2022.
  • Vivian Care to pay executors' litigation costs on standard basis if not agreed, subject to same 'no order as to costs' periods.