The claimant had brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision from the estate of her late father, which, under the terms of his will, had passed in its entirety to the defendant.
The defendant was the deceased’s late wife. Shortly subsequent to the death of the deceased, she was diagnosed with Motor Neurone Disease. This had meant that she required assistance in conducting the litigation. The defendant received assistance from a former partner in a large London law firm (Alan Johnson), acting as her McKenzie friend on a pro bono basis. By an order of the court, the McKenzie friend was granted permission to represent the defendant and in particular to make representations on her behalf at trial (thus obviating the need for the defendant’s attendance).
The judge concluded that the claimant’s application was ‘hopeless’ and dismissed it in its entirety.
As to the costs of the application, it was common ground that the defendant was entitled to her costs, and moreover that under CPR 46.5 and PD 46 a litigant in person can recover costs at a rate of £19 per hour reasonably spent in preparation and attendance.
On behalf of the claimant, Mr Johnson maintained that the time that he spent as a McKenzie friend should be recoverable at the rate specified in CPR 46.5 on the basis that had he not completed the work he did for the defendant, the defendant would have had herself to spend additional time in preparation and attendance, and that such time would have been recoverable. He maintained that this was the case notwithstanding that he did not personally make any claim for payment for the work he did.
The defendant maintained that the only costs recoverable were those of the litigant herself and hence such costs were not recoverable. The defendant also contended that a small reduction ought to be made under the cost capping rule pursuant to CPR 46.5.
Was the time spent by the McKenzie friend recoverable?
Yes. Time spent by a McKenzie friend on behalf of a litigant in person should be treated as time spent by the litigant personally, and likewise disbursements paid for by a McKenzie friend on behalf of a litigant in person should be treated as incurred by the litigant personally and therefore should be reimbursed to the litigant. This would be so particularly in a case such as this, in which the litigant was under a disability and hence required assistance from third parties. This did not breach the principle that a party to litigation can recover no more by way of costs than that which she is liable to pay, albeit that that principle did require that there be no overlap of time spent by the litigant and that spent by the McKenzie friend.
Should cost capping be applied?
No. The application of the cost capping rule would require an item-by-item examination of the litigant’s bill of costs which would be incompatible with the process of summary assessment.JUDGMENT (COSTS) DEPUTY MASTER LLOYD:  I heard this matter on the 17th March 2020 and reserved judgment. I directed that following the release of a draft judgment, the parties should lodge written submissions on costs, which I would dispose of without a further hearing.  The draft was released, and written submissions have been …