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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Dunbabin & Ors v Dunbabin [2022] EWHC 389 (Ch) (23 February 2022) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2022/389.html Cite as: [2022] EWHC 389 (Ch) |
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BUSINESS AND PROPERTY COURTS IN BRISTOL
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
2 Redcliff Street, Bristol, BS1 6GR |
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B e f o r e :
(sitting as a Judge of the High Court)
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(1) TIMOTHY DAVID DUNBABIN (2) ADAM CHRISTOPHER DUNBABIN (3) VICTORIA DUNBABIN (4) SAM JAMES HUMPHREY |
Claimants |
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- and - |
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SIMON CHARLES DUNBABIN |
Defendant |
____________________
The defendant in person
Costs issues dealt with on paper
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Crown Copyright ©
HHJ Paul Matthews :
Introduction
Costs rules
The "successful party"
Mode of assessment
Payment on account
"Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so".
The claimants say there is no such good reason here. The defendant does not suggest there is any good reason taking the matter out of CPR rule 44.2(8). For my part, I can see none, and will therefore order the payment of a sum on account of the claimants' costs.
"22. It is clear that the question, at any rate now, is what is a 'reasonable sum on account of costs'…
23. What is a reasonable amount will depend on the circumstances, the chief of which is that there will, by definition, have been no detailed assessment and thus an element of uncertainty, the extent of which may differ widely from case to case as to what will be allowed on detailed assessment. Any sum will have to be an estimate. A reasonable sum would often be one that was an estimate of the likely level of recovery subject, as the costs claimants accept, to an appropriate margin to allow for error in the estimation. This can be done by taking the lowest figure in a likely range or making a deduction from a single estimated figure or perhaps from the lowest figure in the range if the range itself is not very broad."
Right to indemnity
The statutory rules
"(1) A trustee—
(a) is entitled to be reimbursed from the trust funds, or
(b) may pay out of the trust funds,
expenses properly incurred by him when acting on behalf of the trust."
"(1) This rule applies where –
(a) a person is or has been a party to any proceedings in the capacity of trustee or personal representative; and
(b) rule 44.5 does not apply.
(2) The general rule is that that person is entitled to be paid the costs of those proceedings, insofar as they are not recovered from or paid by any other person, out of the relevant trust fund or estate.
(3) Where that person is entitled to be paid any of those costs out of the fund or estate, those costs will be assessed on the indemnity basis."
(I interpose to say that rule 44.5, referred to in rule 46.3(1)(b) above, concerns costs payable under a contract, and is not relevant to this case.)
"1.1 A trustee or personal representative is entitled to an indemnity out of the relevant trust fund or estate for costs properly incurred. Whether costs were properly incurred depends on all the circumstances of the case including whether the trustee or personal representative ('the trustee') –
(a) obtained directions from the court before bringing or defending the proceedings;
(b) acted in the interests of the fund or estate or in substance for a benefit other than that of the estate, including the trustee's own; and
(c) acted in some way unreasonably in bringing or defending, or in the conduct of, the proceedings.
1.2 The trustee is not to be taken to have acted for a benefit other than that of the fund by reason only that the trustee has defended a claim in which relief is sought against the trustee personally."
Which estate(s)?
"15. The Defendant is the sole surviving executor of Angela's estate, pursuant to the terms of her last will of 22 April 2008 and the sole executor of John's estate pursuant to his last will of 22 November 2019. The Claimants have invited the Defendant to prepare and provide them with a full inventory and account in proper form in relation to each estate. The Defendant has declined to provide the inventory and account in proper form sought."
The prayer seeks orders that "the Defendant … provide an inventory and account in proper form" in relation to the estate of each of Angela and John.
Angela
John
"was doing his best to assist the court, and … that he did not tell me anything he knew to be untrue."
I do not think that, in this case at least, they should lead to the loss of the executor's indemnity.
Conclusion