Kostic v Chaplin & Ors [2007] EWHC 2909 (Ch) (07 December 2007)

Kostic v Chaplin & Ors [2007] EWHC 2909 (Ch) (07 December 2007)

The court held that, down to 18 October 2006, the conduct of the testator (Bane) was the primary cause of the litigation, justifying payment of both sides' costs out of the estate. From 19 October 2006 to 26 February 2007, the circumstances reasonably led to investigation, so each side should bear its own costs. From 27 February 2007 onwards, the CPA (first and second defendants) should pay the claimant's costs on the standard basis, as the litigation became ordinary adversarial litigation and the CPA persisted in defending the claim despite strong evidence against them. No indemnity costs were warranted as the CPA's conduct was not unreasonable.

Citation
[2007] EWHC 2909 (Ch)
Parties
Claimant: Zoran Kostic; First Defendant: Sir Malcolm Chaplin; Second Defendant: Martin Saunders; Third Defendant: HM Attorney General
Jurisdiction
England and Wales
Judgment Date
07 December 2007
Procedural Posture
Contentious Probate Action / Judgment on Costs Following Substantive Judgment
Outcome
Costs orders made in three stages: (a) both sides' costs to 18 October 2006 paid out of the estate; (b) no order as to costs from 19 October 2006 to 26 February 2007; (c) from 27 February 2007, first and second defendants to pay claimant's costs on the standard basis. Additional orders as specified.
Legal Topics
Costs in Probate Litigation, Exceptions to Costs Following the Event, Testamentary Capacity, Indemnity and Standard Basis Costs, Offers to Settle and Part 36
Probate Civil Procedure Costs in Probate Litigation Exceptions to Costs Following the Event Testamentary Capacity Indemnity and Standard Basis Costs Offers to Settle and Part 36

Case Brief

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Parties

Zoran Kostic

Claimant

Sir Malcolm Chaplin

First Defendant

Martin Saunders

Second Defendant

HM Attorney General

Third Defendant

Procedural Posture

Contentious Probate Action / Judgment on Costs Following Substantive Judgment

Legal Issues

  1. 1 Whether the unsuccessful defendants should have their costs paid out of the estate or pay the claimant's costs
  2. 2 Whether costs should be awarded on the indemnity or standard basis
  3. 3 Application of exceptions to the general rule that costs follow the event in probate actions

Ratio Decidendi

The court held that, down to 18 October 2006, the conduct of the testator (Bane) was the primary cause of the litigation, justifying payment of both sides' costs out of the estate. From 19 October 2006 to 26 February 2007, the circumstances reasonably led to investigation, so each side should bear its own costs. From 27 February 2007 onwards, the CPA (first and second defendants) should pay the claimant's costs on the standard basis, as the litigation became ordinary adversarial litigation and the CPA persisted in defending the claim despite strong evidence against them. No indemnity costs were warranted as the CPA's conduct was not unreasonable.

Court Disposition

Costs orders made in three stages: (a) both sides' costs to 18 October 2006 paid out of the estate; (b) no order as to costs from 19 October 2006 to 26 February 2007; (c) from 27 February 2007, first and second defendants to pay claimant's costs on the standard basis. Additional orders as specified.

Orders

  • Costs of claimant and first and second defendants to 18 October 2006 to be paid out of the estate.
  • No order as to costs from 19 October 2006 to 26 February 2007, except as specified.