NO SPECIAL RULES FOR LITIGANTS IN PERSON: COSTS DO NOT FOLLOW THE EVENT FOLLOWING UNREASONABLE CONDUCT

Master Mathews faced an unusual scenario in Jones -v- Longley [2015] EWHC 3362 (Ch).  This case highlights the fact that litigants in person are not subject to any special rules and are liable to have orders for costs made against them.

“there are not two sets of rules, one for lawyers and one for laymen. If you embark on litigation without a lawyer, you cannot expect to be judged by rules different from those which apply to litigants legally represented.”

KEY POINTS

  • Although the claimant’s application to have the first defendant removed as co-executor led to the claimant, in fact, being removed it was wholly appropriate to order the first defendant to pay the costs of the application.
  • A litigant in person will not be judged by rules different from from those which apply to litigants legally represented.

PRACTICE POINTS

  • There is here a point for litigants on person to take on board in relation to the risks as to costs.
  • It may be prudent for lawyers to draw the attention of litigants in person to the risks they are running.

THE CASE

The claimant and first defendant were executors of a will. The claimant was a solicitor and the first defendant the son of the deceased who acted as a litigant in person. The claimant made an application to remove the first defendant as co-executor.  The Master, instead, made an order removing the claimant.

THE ISSUE OF COSTS

The Master ordered the costs to be paid by the first defendant. This was despite ordering that it was the claimant that be removed as an executor. The Master held:

  • The claimant was acting in the best interests of the estate in bringing the claim, and he acted reasonably in adapting the claim to the circumstances in which they altered.
  • The first defendant did not act reasonably in the way he defended the matter.
THE JUDGMENT ON COSTS
  1. I turn to the question of reasonableness. In my judgment, it was reasonable for the Claimant to bring this claim, and he acted reasonably in adapting the claim to the circumstances as they altered. On the other hand, for the reasons already given, I do not think that the First Defendant acted reasonably in the way that he defended the claim. In the result, for the purposes of para 1.1 of the Practice Direction to CPR Part 46, I am of the opinion that, to the extent that the Claimant cannot recover his costs from elsewhere, he should recover them from the estate, on the indemnity basis, but that the First Defendant should not.
  2. I now return to the question whether either party should be ordered to pay the costs of the other. In my judgment, it is appropriate that the court should make a costs order in this matter. Normally, in such circumstances, costs follow the event. On that basis, the Claimant, having sought an order removing the First Defendant, would have been unsuccessful, because instead I made an order removing the Claimant.
  3. But in my judgment this is a case where the idea underlying the claim has been vindicated. This is that the two personal representatives cannot be expected to continue to work together, and at least one must go. To launch the claim was the right course to take at the time. The First Defendant resisted that at first, and only later suggested that the proper order was that the Claimant should be removed. The Claimant meanwhile suggested that both should be removed. I am satisfied that this was on the basis, not of seeking to disadvantage the First Defendant, but from a genuine concern that the administration might not be safe in the hands of the First Defendant.
  4. My reasons for preferring to remove the Claimant rather than the First Defendant (or both of them) in this case were exceptional, and depended in large part on the fact that there were only three adult beneficiaries interested in the estate, all siblings (and latterly defendants), that they all wished the First Defendant and not the Claimant to continue to act, and that they were willing to accept any risk inherent in entrusting the administration to the First Defendant alone.
  5. In my judgment, whether or not the Claimant has in substance been successful in bringing this claim, and whether or not he has committed any breaches of duty in the administration, he can be regarded as having done the right thing in the interests of the estate and its beneficiaries in bringing these proceedings. That is conduct to be encouraged. The behaviour of the First Defendant, on the other hand, in conducting the litigation in such an unreasonable way as I have described, is not. In my judgment it is right that the First Defendant should pay the Claimant’s costs of the claim, on the standard basis if not agreed. To the extent that those costs are not recovered from the First Defendant, they will be recoverable from the estate on the indemnity basis, as set out above.
  6. I add a word on the position of the Second and Third Defendants. Their part in the litigation has been small. They were brought into it by notices under CPR r 19.8A. They had a choice as to whether to become parties, and they chose to do so, in each case explicitly supporting the action taken by the First Defendant, their brother. They attended the hearing on 30 July 2015, and confirmed that they wanted him to be left as sole executor. They have therefore made themselves vulnerable to a claim that they too should be liable to pay the Claimant’s costs. However, the Claimant has not sought an order against them, and so I make no order as against them. I make no order in their favour either, because they sided with the First Defendant’s position in objecting to the claim.

THE CONDUCT OF THE FIRST DEFENDANT

Earlier in the judgment the Master dealt with aspects of the conduct of the claim by the First Defendant.
  1. The Defendants also argue that the First Defendant has conducted the litigation reasonably and proportionately, having responded to the claim in a measured and restrained way (pp 18, 21). Again, I do not agree. On my reading of the thousands of pages of material placed before me in this case, the First Defendant’s approach to the litigation has been (1) to characterise any failure or refusal by the Claimant to comply with his meticulous, pedantic and in my judgment unreasonable demands during the administration (see eg the letters sent by him to Mr Carr in March to June 2013) as itself evidence of the Claimant’s unreasonable conduct, (2) to state and restate the allegations in prolix, quasi-scientific and repetitive language (seeeg the 20 pages of the First Defendant’s witness statement of 27 February 2014, at pp 167-186 of vol 2 of the hearing bundle), and (3) to purport to support such allegations by reference to voluminous written materials, most of which are of marginal relevance at best (see eg the correspondence between the First Defendant and the Land Registry in exhibit DCL7, in the Defendants’ Supplementary Bundle, pp 144-205). I will not lengthen this judgment by citing examples in extenso, but they litter the nine volumes of papers with which I had to deal at the hearing.
  2. Of course, I accept that the First Defendant is not a lawyer, but he is clearly an intelligent and articulate man, and in any event there are not two sets of rules, one for lawyers and one for laymen. If you embark on litigation without a lawyer, you cannot expect to be judged by rules different from those which apply to litigants legally represented.

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GUIDANCE FROM KERRY UNDERWOOD

 

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