Successful challenge to costs order in contentious probate dispute

Joanna Baker successfully acted for the claimant in a High Court costs dispute arising from a claim under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) and the Inheritance (Provision for Family and Dependants) Act 1975.

The claimant in Hewson v Wells [2020] sought a declaration that she held a beneficial interest in the property of her late cohabitee, who died intestate, alongside a claim for reasonable financial provision from the estate.

A key issue in the case was the claimant’s request to inspect the original title deed to establish her interest in the property. Despite repeated requests, the defendant did not make the deed available for inspection for 18 months.

Once the deed was finally produced, the claimant discontinued part of her claim but applied to disapply the general rule under CPR 38.6, which ordinarily requires a discontinuing claimant to pay the defendant’s costs. The court was asked to consider whether there had been a change in circumstances, caused by the defendant’s unreasonable conduct, sufficient to justify departing from the usual costs rule.

On the claimant’s behalf, Joanna argued that the defendant’s conduct had forced the claimant to issue proceedings and had significantly increased the costs of the litigation.

Master Clark agreed. The court found that the defendant had failed to engage properly with pre-action correspondence, delayed production of the title deed for 18 months and repeatedly failed to provide the addresses of the second and third defendants despite multiple requests.

In light of that unreasonable conduct, the court exercised its discretion and made no order as to costs.

The decision in Hewson v Wells [2020] provides helpful authority for parties involved in contentious probate, trusts and estate disputes. It confirms that the court may depart from the usual costs consequences of discontinuance where a defendant’s unreasonable conduct has made litigation necessary.

The case also highlights the importance of complying with reasonable pre-action requests and engaging constructively before proceedings are issued. Where parties fail to do so, the court may take that conduct into account when deciding who should bear the costs of the dispute.