risks of taking a case to trial

The Inherent Risks of Taking a Case to Trial

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss the risks of taking a case to a trial (even in the face of a notice under CPR 57.7(5))

Is it the case that in relation to Will dispute and Will contest claims which are lost at trial the parties costs are paid by the estate?

The issue here is what happens to your lawyers costs and those of the winning party in Will dispute and Will contest claims which you lose at trial. The answer is complex in one sense (see below) but don’t be fooled. In the vast majority of cases, you will be ordered to pay the winners’ costs, so unless you have insurance protection (which can be obtained in relation to no win no fee arrangements), you will face a substantial bill even though your own Solicitor has agreed to fund your claim under a no win no fee arrangement.

We raised the inherent danger of taking a case to a trial in a previous blog –

There is no such thing as a cast-iron 100% claim in litigation. Most practitioners will probably agree that even the strongest case on paper may have a 30% to 35% risk (of losing) associated with it. The question then of whether a case should be taken all the way to a trial, should be considered very carefully and balanced against the cost of so-doing (for instance some costs such as the ATE insurance premium and your Barrister’s success fee and a large chunk of your own Solicitors costs are likely to be found to be irrecoverable), your ability to cope with the stress of a trial and the considerable amount of wasted time and resources that it is likely to consume.

Goodwin v Avison and others 2021 EWHC 2356 (Ch)

This is a salutary case and probably worth exploring in a little detail in the context of Will dispute and Will contest claims. The full report can be found here:

The deceased, who was a farmer, left an estate which had an approximate value of between about £3m and £4m. Plainly worth fighting over. The claims raised were against the legal validity of the deceased’s 2017 Will. The Will wasn’t drafted by a Solicitor (but a lay person who had no further involvement with it) and executed in front of two witnesses, one an accountant and the other a secretary with the same firm. The various allegations raised by one of the deceased’s children and grandchildren, were that the deceased did not properly execute the Will, he didn’t know and approve its contents and that the Will was procured by the undue influence of the Claimant.

Given the Claimant (the deceased’s son) instituted the claim, the second Defendant to it was able to rely on CPR 57.7(5) by which she raised no positive defence other than requiring the Claimant to prove the Will (was valid). The advantage of such a claim is that one is protected in general from a costs order even if the Will is proved. We have pasted an extract from this part of the Civil Procedure Rules next and for reference:

(a) A defendant may give notice in his defence that he does not raise any positive case, but insists on the will being proved in solemn form and, for that purpose, will cross-examine the witnesses who attested the will.
(b) If a defendant gives such a notice, the court will not make an order for costs against him unless it considers that there was no reasonable ground for opposing the will.

The problem here is that at the trial the Defendant in question took a very active role in matters and she raised in effect a positive case against the legal validity of the Will in her witness statement. This was too much for the Court. It appeared to suggest that the notice (of no positive case) was simply a device to hide behind whilst in reality a positive claim was being raised. HH Judge Davis-White QC made orders for costs against the Defendant in question.

The two exceptions to the rule that “costs follow the event” in contested or disputed probate cases

Yes, there are two exceptions in Will dispute and Will contest claims in relation to the usual order that costs follow the event (so that at a trial the winning party’s costs are met by the loser). The exceptions are also restated in Goodwin referred to above:

The first probate costs principle is that if a person who makes a will or persons who are interested in the residue have been really the cause of the litigation, a case is made for costs to come out of the estate (Spiers v English [1907] P.122 at 123).

The second probate costs principle points to there being no order for costs, but the parties bearing their own costs. The principle was stated in the Spiers v English case as follows:

“if the circumstances lead reasonably to an investigation of the matter, then the costs may be left to be borne by those who have incurred them.”

In Goodwin the Court declined to apply either leaving the Defendants liable for the Claimants costs when they lost at trial. Taking a step back, the problem for unsuccessful Defendants who believe they might rely on these exceptions is firstly the reluctance of the Court to apply them (because rightly it is feared this might encourage claims of this nature) but moreover because in losing the Court has found that their evidence (in general terms) and therefore the basis of their claims was unmeritorious. It must follow that it is only in the rarest of instances is the court likely to adjust the usual order that the losing party pays the winners costs.

If you consider any of these facts and matters are of interest, 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.

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