Richard Paul Thomas v (1) David Jeffery (2) Joy Sweet (3) Gemma Sweet (2012)
A recorder had not erred in principle in the manner in which he exercised his discretion on costs and the judge had not been entitled to reverse his decision.
The appellant (T) appealed against a decision allowing an appeal by the respondents (J) against a costs order made by the recorder following the trial of T's claim.
T made a claim under the Inheritance (Provision for Family and Dependants) Act 1975 following the death of his father. J were the executors and the residuary beneficiary under the father's will, which made no provision for T. T's case was that he had spent a material part of his childhood working on his father's farm and that he had been assured that the farm would be his one day. He recognised that, once his father retired and sold the farm, he was not going to inherit it but he claimed that his expectations were still that he would inherit the deceased's estate as he felt he had contributed to a successful farm. Although there had been difficulties at the time of his parents' divorce, he and his father were subsequently reconciled. Although T was capable of earning a living, he had no property and was over £36,470 in debt. That figure only emerged during trial at the recorder's prompting. His claim was for some 50 per cent of the net estate or about £100,000. The recorder correctly conducted a two-stage inquiry. At the first stage he decide that the disposition of the deceased's estate effected by his will did not make reasonable provision for T's maintenance. At the second stage he concluded that the reasonable provision to make for T was a lump sum of £36,475 to cover his debts. He ordered the executors to pay T's costs out of the estate on the standard basis. J appealed on costs and the judge ordered T to pay their costs of the claim and of the appeal. He held that the recorder had erred in his approach to Ford v GKR Construction Ltd  1 W.L.R. 1397.
The discretionary jurisdiction that a judge was called upon to exercise when making a decision as to costs required him to take account of all relevant aspects of the litigation, Ford v GKR considered. That included the making by T of the late disclosure of the details of his indebtedness. Ford was not authority for the proposition that any shortcoming of that nature on the part of a litigant dictated a particular costs consequence. The question for the judge was whether the recorder in any way erred in principle in the manner in which he exercised his discretion. It was obvious that he did not. J were entitled to raise the fact of the late disclosure; it was plainly a relevant circumstance to which the recorder had to have regard. The recorder did precisely that. He took careful account of the fact of the late disclosure and concluded that he could not be satisfied that, had it been made earlier, it would have made any difference to the outcome of the proceedings. J never made any offer to settle the proceedings; their stance was, and remained, that T's claim that his father's will failed to make reasonable provision for his maintenance should be rejected at stage 1; they did not seek the disclosure of T's indebtedness, which was made only as a result of the order that the recorder made of his own motion; when the disclosure was made, J did not suggest that they needed time to consider their position or that the disclosure fundamentally changed the complexion of the case; in assessing whether T was entitled to succeed at stage 1, the recorder placed no reliance on the disclosure in relation to his indebtedness. The recorder was entitled to conclude that he could not be satisfied that, had the disclosure been made earlier, it would have made any difference. It was far from clear that, had the late disclosure not been made, T's claim would have failed. The recorder correctly directed himself in relation to the exercise of his discretion as to the appropriate costs order and his order was restored.
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31 May 2012
Court of Appeal
Laws LJ, Rimer LJ, Patten LJ
LTL 31/5/2011 :  EWCA Civ 693