the danger of not negotiating

The Problem With Costs (Part 1 of 3)


Surely if I win my will dispute or will contest claim, my opponent will pay? After all, the loser always pays doesn’t he?

Well I am afraid the answer is not necessarily and in any event what do you/we mean by “win”. The latter question is for another day, but let us assume you win at a trial, even though 99.9% of will dispute and/or will contest claims never get that far.

There are a number of hurdles to overcome to secure the payment of your costs and even then, a large proportion of your costs won’t be payable because your Solicitors costs will be subject to and reduced by a system of court assessment called “taxation”. Typically one can anticipate that about 30% to 40% of your costs could be deemed unacceptable by the court (“taxed off”). Does this mean your Solicitors can’t charge you their unrecovered costs? No, not necessarily; it depends on the arrangements that you have with them. Moreover there is a cost attached to the “taxation” or assessment process which you will have to pay and afterwards, of course, there is the problematic issue of getting the unsuccessful party to pay.

Well what are these “hurdles”?

Hurdle 1 – your pre-action conduct

By this, I am referring to how you/your Solicitor dealt with the correspondence and requests for papers before Court proceedings were started.

In most types of claim, there is a “Protocol” or set of rules to comply with even before there are any court proceedings. Curiously, there is no such protocol for Will dispute and Will contests claims. Nevertheless, the Courts/Judges have made a ruling called a “Practice Direction for Pre Action Conduct” which dictates that you must behave in a particular way, notwithstanding you are not yet before the Courts as it were. I have cut and pasted the relevant part below.

Steps before issuing a claim at court

6. Where there is a relevant pre-action protocol, the parties should comply with that protocol before commencing proceedings. Where there is no relevant pre-action protocol, the parties should exchange correspondence and information to comply with the objectives in paragraph 3, bearing in mind that compliance should be proportionate. The steps will usually include—

(a) the claimant writing to the defendant with concise details of the claim. The letter should include the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if money, how the amount is calculated;
(b) the defendant responding within a reasonable time – 14 days in a straight forward case and no more than 3 months in a very complex one. The reply should include confirmation as to whether the claim is accepted and, if it is not accepted, the reasons why, together with an
explanation as to which facts and parts of the claim are disputed and whether the defendant is making a counterclaim as well as providing details of any counterclaim; and
(c) the parties disclosing key documents relevant to the issues in dispute.

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7. Parties should be aware that the court must give permission before expert evidence can be relied upon (see CPR 35.4(1)) and that the court may limit the fees recoverable. Many disputes can be resolved without expert advice or evidence. If it is necessary to obtain expert evidence, particularly in low value claims, the parties should consider using a single expert, jointly instructed by the parties, with the costs shared equally.

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Settlement and ADR

8. Litigation should be a last resort. As part of a relevant pre-action protocol or this Practice Direction, the parties should consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings.

9. Parties should continue to consider the possibility of reaching a settlement at all times, including after proceedings have been started. Part 36 offers may be made before proceedings are issued.

In summary, pre action (before court proceedings are instigated) the parties must:
• In general act reasonably and cooperate with each other.
• Set out their claim and defence in detail.
• Provide each other with appropriate papers which are relevant
• Litigation meaning the actual court case/proceedings is a “last resort” – really you must now demonstrate you have participated in so-called “alternative dispute resolution” (“ADR”), which means you have attempted to negotiate, tried mediation (a negotiation using a professional facilitator called a “mediator”) or another form of ADR which could be a neutral evaluation by an independent Barrister – see for example –

If you don’t behave as above before the Court claim is started in Will contest or Will dispute cases, you are likely to find it difficult to persuade a court to award you costs even if you win your claim. In Burgess v Penny 26 July 2019 (see also ) this is exactly what happened. Each side were asked to bear their own costs. A failure to agree to a mediation was cited as one reason for the court reaching this decision. As per the Judge: She said,

“…. mediation is not just about one side getting what they want. That is a misconception of the purpose of mediation. Mediation should be about attempting to reach a solution which both parties can live with as a better alternative to litigation. A trained mediator would have told the Defendants that in litigation they might well not get the admission they were seeking (and indeed they did not). Taking at face value their assertion that they were happy with an equal division of the estate, all parties could have focussed on who was to take the grant, and, since the discussion on the eve of Freda’s funeral (referred to in detail in the judgment), it was apparent that the Claimant did not want to take the grant on his own if at all, I surmise that he would have been open to such a discussion”.

If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.