Green v Astor & ors [2013] EWHC 1857 (Ch)

WTLR Issue: November 2013 #134

CHRISTINE MARY GREEN As administratrix of the estate of Peter Maclean Maitland (deceased)










The judgment concerned the costs of an application by the administratrix of the aforesaid estate (the Maitland Estate) pursuant to CPR, Part 64.2(a). Apart from two charities, there were six beneficiaries of the residuary estate under the will of the deceased. The first defendant, a beneficiary and formerly an executor, was the only of the defendants to oppose the application. The parties’ overall legal costs incurred up to and including the hearing were over £900,000, a staggering figure for an application of this kind, especially where the aspect of the estate in issue was worth less than £8,000,000.

Mr Maitland died in October 2009. After her appointment as administratrix, Mrs Green was substituted as party in place of Mr Maitland in two sets of proceedings in Switzerland in relation to a share of the Maitland Estate bequeathed to it by Mrs Anne Norman.

By her Part 8 claim form, the administratrix sought four heads of relief:

1. Approval of her decision to enter into a Tomlin Order made on 20 October 2011 in the first set of the afore-mentioned proceedings issued against a Mr Francis Burne (in relation to alleged misappropriations from (the estate of) Mrs Anne Norman;

2. Authorisation to enter into a partition agreement with one Lord Freyburg (a beneficiary of a substantial share of the Norman Estate) in relation to the second set of afore-mentioned proceedings and the apportionment of costs and distribution of the Norman Estate.

3. That the administratrix be relieved of any obligation to issue proceedings in the name of the Maitland Estate against a number of specified third parties;

4. Her costs assessed on an indemnity basis be paid out of Mr Astor’s share of the residue of the Maitland Estate.

The claimant argued she should have most if not all of her costs from the first defendant. The first defendant argued that a substantial part of the costs should be paid by the claimant personally. In relation to the partition agreement, the seven other beneficiaries had signed written forms of consent, but the first defendant had in correspondence made very serious allegations against the administratrix, including fraud; breach of fiduciary duty, and incompetence, as well as threatening an application for injunctive relief.

As to the potential claims against third parties, the administratrix (partly in light of advice from leading counsel) had concluded that the claims against third parties were either statute-barred or unsubstantiated by evidence. She explained this to the beneficiaries, none of whom requested her to take action save for the first defendant, who requested the assignment to him of the prospective claims.

In the present proceedings, Roth J refused to grant the relief in respect of the Tomlin Order on the basis it was inappropriate for the court retrospectively to authorise an historic exercise by an administrator of their discretion. The judge granted the relief sought in respect of the partition agreement. No order was required in relation to the prospective claims against third parties as the parties had agreed to execute a deed of assignment in relation to these claims (recorded in an order of Norris J made on 17 December 2012).


(1) The Tomlin Order sought was declined so there is no question of Mr Astor paying the costs of that part of the claim. Nothing the court said on this application could affect the validity of the settlement reached some 20 months ago. Further, such relief would be for the benefit of the administratrix not that of the Maitland Estate. It should never have been sought in Part 64 proceedings. In the premises, the claimant should bear her own costs referable to that issue and she should pay that part of Mr Astor’s costs.

(2) The application for approval of entry into the partition agreement succeeded. A beneficiary has no duty to consent to action proposed by an administrator or to be polite. However, where unreasonable conduct by a beneficiary is responsible for generating substantial costs on the part of a trustee or personal representative as regards an application to the court, it is appropriate that the burden of those costs should be borne by that beneficiary and not fall on the trust or estate and thus the beneficiaries as a whole.

(3) It was the first defendant’s costs, alone among the beneficiaries, which led the administratrix to seek court approval. His conduct had done much to escalate the costs of this litigation until the order of Peter Smith J of 2 May 2013, when he indicated by his counsel for the first time at the opening of trial, that he was not opposing entry into the partition agreement. The proceedings had the character of hostile litigation. In the premises, Mr Astor should pay the costs referable to this second head of relief.

(4) In respect of the estate’s potential claims against third parties, the costs are negligible relative to the first two heads. However, those costs should be paid by the first defendant as he was offered an assignment of the claims, which he agreed to take only after these proceedings had been commenced.

(5) Since adverse costs orders have been made, they should be on the standard basis and not the indemnity basis. Determination of this matter would be a very difficult task for a costs judge. An issue-based apportionment cannot be precise so a broad brush approach is necessary. In the circumstances, 15% of the costs should be regarded as referable to the Tomlin Order claim. That proportion of Mrs Green’s costs is disallowed and she is liable for that proportion of Mr Astor’s costs. Mr Astor must pay 85% of Mrs Green’s costs. These orders are to be set off as against each other. What the reasonable and proportionate costs actually are will be for determination by a costs judge on a detailed assessment if they are not agreed.

JUDGMENT ROTH J: Introduction [1] This judgment concerns the costs of an application by the administrator of an estate pursuant to CPR Part 64.2(a). However, to say that it concerns ‘only’ costs would be an understatement. Most of the substantive issues in the application were resolved by agreement and the rest dealt with in a …
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Counsel Details

Penelope Reed QC & Charlotte Edge (5 Stone Buildings, Lincoln’s Inn, London WC2A 3XT, tel 020 7242 6201, e-mail, instructed by Veale Wasbrough Vizards (Orchard Court, Orchard Lane, Bristol, tel 0117 925 2020, e-mail for the claimant/applicant.

Robert Ham QC, (8 New Square, Lincoln’s Inn, London, WC2A 3QP, tel +44 (0)20 7306 0102, e-mail, instructed by Harcus Sinclair (3 Lincoln’s Inn Fields, London WC2A 3AA, tel 020 7242 9700, for the defendants/respondents.