Bowser v Smith & Anor (Re Estate of Ian John Smith) [2023] EWCA Civ 923 (01 August 2023)

Bowser v Smith & Anor (Re Estate of Ian John Smith) [2023] EWCA Civ 923 (01 August 2023)

The judge's costs order was within the wide discretion afforded to the court, as the appellant's conduct in bringing and pursuing the proceedings was not a reasonable and proper exercise of his powers as personal representative, given the lack of proper pre-action conduct, the absence of a legal conflict of...

Source-derived case information.

Citation
[2023] EWCA Civ 923
Parties
Claimant/appellant: Brian Richard Bowser; Defendant/respondent: Julie Ann Smith; Defendant/respondent (as Personal Representative of the Estate of Ian John Smith (deceased)): Michael Anthony Green
Jurisdiction
England and Wales
Judgment Date
01 August 2023
Procedural Posture
Appeal (costs Order) / Court of Appeal Judgment on Appeal From High Court (business and Property Courts, Chancery Division)
Outcome
Appeal dismissed
Legal Topics
Costs Orders, Removal of Executors, Personal Representatives, Conflict of Interest, Inheritance (provision for Family and Dependants) Act 1975
Trusts and Estates Civil Procedure Costs Orders Removal of Executors Personal Representatives Conflict of Interest Inheritance (provision for Family and Dependants) Act 1975

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Summary, issues, holding and outcome

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Parties

Brian Richard Bowser

Claimant/appellant

Julie Ann Smith

Defendant/respondent

Michael Anthony Green

Defendant/respondent (as Personal Representative of the Estate of Ian John Smith (deceased))

Procedural Posture

Appeal (costs Order) / Court of Appeal Judgment on Appeal From High Court (business and Property Courts, Chancery Division)

Legal Issues

  1. 1 Whether the judge erred in making a costs order adverse to the appellant, including depriving him of indemnity from the estate and ordering him to pay the respondent's costs.
  2. 2 Whether the appellant's conduct in bringing and pursuing the proceedings was a reasonable and proper exercise of his powers as personal representative.
  3. 3 Whether there was a legal conflict of interest preventing a personal representative from acting while intending to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

Ratio Decidendi

The judge's costs order was within the wide discretion afforded to the court, as the appellant's conduct in bringing and pursuing the proceedings was not a reasonable and proper exercise of his powers as personal representative, given the lack of proper pre-action conduct, the absence of a legal conflict of interest, and the fact that the respondent had offered a reasonable settlement early on. The appellant failed to show manifest injustice in the costs order.

Court Disposition

Appeal dismissed

Orders

  • Costs order of Bacon J dated 24 November 2022 upheld
  • Appellant to pay respondent's costs of the claim on the standard basis