Costs in Probate Litigation - Lessons Learned from Leonard v Leonard

Introduction

The handling of costs in probate litigation often presents unique challenges.

Issue-based costs orders may be sought by parties (often those who were ultimately unsuccessful) as a means of either limiting their costs liability or to assist the Court in ensuring a fair outcome where a particular issue was either conceded or not found in favour of the successful party.

Such orders are rarely made, as generally the court favours percentage or specific date range orders due to the impracticalities of identifying and apportioning costs to any particular issue.

In Leonard v Leonard, an unusual issue-based costs order was made by Mrs Justice Joanna Smith in a case where the claimants had the benefit of a successful pre-action Part 36 offer.

The order applied common law probate exceptions to depart from the general rule on costs at CPR 44.2(a) that costs should follow the event, and further allowed the parties to apply for an exceptional non-party costs order against the firm who drafted the testator’s second will.

This webinar will examine the basis of this decision - how the Court approached the issues in question, when the common law probate exceptions can be applied, and the arguments around whether the Claimant’s Part 36 offer had been genuine.

What You Will Learn

This short webinar will cover the following:

• An analysis of the key points from Leonard v Leonard and the reasoning and grounds for the court’s decision
• Issue-based orders (reflecting the extent to which costs were increased by the raising of a particular issue) and where percentage/date range orders might not be appropriate
• When should the common law probate exceptions apply to displace the general rule?
• Part 36 and genuine offers in probate cases
• Possible risks to practitioners in the fields of both non-contentious probate in relation to non-party costs orders

This pre-recorded webinar will be available to view from Tuesday 22nd April 2025

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