CHIU MAN FU AND OTHERS v. CHIU CHUNG KWAN YING

CHIU MAN FU AND OTHERS v. CHIU CHUNG KWAN YING

The court held the plaintiffs failed to satisfy either exception to the general rule that costs follow the event because they did not take proper steps to inform themselves, independent witnesses and treating doctors supported testamentary capacity and the 2003 Will was objectively rational; further the plaintiffs conducted hostile litigation which negates the exceptions. The defendant's 15 March 2011 Offer did not comply with mandatory requirements of Order 22 and therefore was not a sanctioned offer or sanctioned payment and could not justify indemnity costs; the Offer being without prejudice save as to costs is also excluded because the defendant could have protected costs by a...

Citation
CHIU MAN FU AND OTHERS v. CHIU CHUNG KWAN YING
Parties
Plaintiffs: Plaintiffs; Defendant: Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 May 2012
Case Number
HCAP9/2005
Procedural Posture
Probate (contested Will) / Post Judgment Costs Application (decision on Costs)
Outcome
Application by plaintiffs to vary costs order refused; order nisi made absolute; defendant's application for indemnity costs refused; no order as to costs between parties for the variation applications; plaintiffs' own costs to be taxed in accordance with legal aid regulations.
Legal Topics
Costs Orders, Indemnity Costs, Sanctioned Offers and Sanctioned Payments (order 22), Without Prejudice Save as to Costs (order 62), Testamentary Capacity, Hostile Litigation and Costs Consequences
Source Language
EN
Probate Civil Procedure Costs Wills and Succession Evidence Costs Orders Indemnity Costs Sanctioned Offers and Sanctioned Payments (order 22) +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 4 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Plaintiffs

Plaintiffs

Defendant

Defendant

Procedural Posture

Probate (contested Will) / Post Judgment Costs Application (decision on Costs)

Legal Issues

  1. 1 Whether the costs order nisi should be varied so that costs be borne by the estate on a common fund basis or that there be no order as to costs
  2. 2 Whether either of the two established exceptions to costs following the event in probate actions is engaged (conduct of testator/residual beneficiary; circumstances reasonably leading to investigation of will)
  3. 3 Whether plaintiffs took proper steps to inform themselves of facts before litigating

Ratio Decidendi

The court held the plaintiffs failed to satisfy either exception to the general rule that costs follow the event because they did not take proper steps to inform themselves, independent witnesses and treating doctors supported testamentary capacity and the 2003 Will was objectively rational; further the plaintiffs conducted hostile litigation which negates the exceptions. The defendant's 15 March 2011 Offer did not comply with mandatory requirements of Order 22 and therefore was not a sanctioned offer or sanctioned payment and could not justify indemnity costs; the Offer being without prejudice save as to costs is also excluded because the defendant could have protected costs by a...

Court Disposition

Application by plaintiffs to vary costs order refused; order nisi made absolute; defendant's application for indemnity costs refused; no order as to costs between parties for the variation applications; plaintiffs' own costs to be taxed in accordance with legal aid regulations.

Orders

  • Plaintiffs' application to vary the order nisi refused
  • Order nisi for costs made absolute (plaintiffs ordered to pay defendant's costs as previously ordered)