O'Connell v O'Connell & Anor (Approved) [2023] IEHC 215 (21 April 2023)

O'Connell v O'Connell & Anor (Approved) [2023] IEHC 215 (21 April 2023)

The statutory regime under the Legal Services Regulation Act 2015 applies to probate/construction suits. The default position is that costs follow the event (s.169), and the successful party (second defendant) is entitled to costs against the unsuccessful party (first defendant). The executor's costs are to be paid from the estate. The first defendant's rejection of a reasonable settlement offer is a relevant factor. Older case law does not displace the statutory default. The court exercises its discretion to do justice between the parties, considering the effect of costs orders on the estate and beneficiaries.

Citation
[2023] IEHC 215
Parties
Plaintiff / Executor: Padraig O’Connell; First Defendant / Beneficiary: Thomas O’Connell; Second Defendant / Residuary Legatee Representative: Breda (Bridie) Murphy
Jurisdiction
Ireland
Judgment Date
21 April 2023
Procedural Posture
Probate / Construction Suit (special Summons) / Post Judgment (costs Ruling)
Outcome
Costs awarded to the second defendant against the first defendant; executor's costs to be paid from the estate; first defendant not entitled to recover costs from the estate.
Legal Topics
Costs in Probate Litigation, Construction of Wills, Partial Intestacy, Application of Legal Services Regulation Act 2015 to Probate, Lis Inter Partes in Estate Disputes
Probate Succession Law Civil Procedure Costs in Probate Litigation Construction of Wills Partial Intestacy Application of Legal Services Regulation Act 2015 to Probate Lis Inter Partes in Estate Disputes

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Parties

Padraig O’Connell

Plaintiff / Executor

Thomas O’Connell

First Defendant / Beneficiary

Breda (Bridie) Murphy

Second Defendant / Residuary Legatee Representative

Procedural Posture

Probate / Construction Suit (special Summons) / Post Judgment (costs Ruling)

Legal Issues

  1. 1 Whether costs in a probate construction suit should be paid from the estate or by the unsuccessful party
  2. 2 Applicability of 'costs follow the event' under s.169 Legal Services Regulation Act 2015 to probate/construction suits
  3. 3 Whether older jurisprudence (Buckton Rules, Vella v Morelli) survives post-2015 Act

Ratio Decidendi

The statutory regime under the Legal Services Regulation Act 2015 applies to probate/construction suits. The default position is that costs follow the event (s.169), and the successful party (second defendant) is entitled to costs against the unsuccessful party (first defendant). The executor's costs are to be paid from the estate. The first defendant's rejection of a reasonable settlement offer is a relevant factor. Older case law does not displace the statutory default. The court exercises its discretion to do justice between the parties, considering the effect of costs orders on the estate and beneficiaries.

Court Disposition

Costs awarded to the second defendant against the first defendant; executor's costs to be paid from the estate; first defendant not entitled to recover costs from the estate.

Orders

  • Second defendant awarded costs against first defendant, to be charged on the first defendant's share of the estate.
  • Plaintiff executor's costs to be paid from the estate.