“The Claimant is the Executor of the Will of the deceased dated1st October 1996 . The Defendants were granted Letters of Administration dated14 June 2013 on the basis that the deceased died intestate. The Will has since been found and the Claimant seeks revocation of the Letters of Administration and an Order that probate is granted to him.”
“5. The real issue between Julian and the Defendants in this case in respect of the administration of their late parents' estates is not as to the validity of [Jean’s] Will (or as to the validity of [Alexander]'s Will) in that, in the events that have happened, the distribution of the estates on intestacy is not significantly different to the distribution under either or both wills (and as between Julian and the Defendants as beneficiaries would be identical). 6. The question of substance to be determined is rather as to whether the estates of [Jean] and [Alexander] should be administered (or in the case of [Alexander]'s estate, should continue to be administered) by Julian, as he contends they should or whether, as the Defendants contend, for the reasons set out below: a. the administration of both estates should be completed by a single independent administrator; and b. new independent trustees should also be appointed to replace Julian and Philip George (the sixth defendant to counterclaim, 'Mr George') as trustees of a trust declared by [Jean] and [Alexander] in 2008 ('the Trust') for the benefit of the Defendants and their 3 siblings (referred to collectively below as 'the Children').” a. the administration of both estates should be completed by a single independent administrator; and b. new independent trustees should also be appointed to replace Julian and Philip George (the sixth defendant to counterclaim, 'Mr George') as trustees of a trust declared by [Jean] and [Alexander] in 2008 ('the Trust') for the benefit of the Defendants and their 3 siblings (referred to collectively below as 'the Children').”
“By reason of Julian's conduct in relation to the same as set out in paragraphs 23 to 25 above and by reason of Julian's untrusteelike conduct more generally in relation to [Alexander]'s estate (which has been characterised by unjustified hostility to the Defendants, and at least until recently also to Vanessa, unfairness, secrecy, self-interest, highhandedness and a general disregard of his duty to act in the interests of all the beneficiaries of the estate) and [Jean’s] estate and in relation to the Trust (as set out below): a. the Defendants have now lost all trust and confidence in Julian either as the personal representative of [Alexander]'s estate or as a potential personal representative of [Jean’s] estate; and b. in the premises it would be in the interests of the proper administration of [Jean’s] estate and of [Alexander]'s estate and the welfare of the beneficiaries of those estates if a single independent professional administrator were appointed in place of Julian (and in place of the Defendants in respect of [Jean’s] estate).” a. the Defendants have now lost all trust and confidence in Julian either as the personal representative of [Alexander]'s estate or as a potential personal representative of [Jean’s] estate; and b. in the premises it would be in the interests of the proper administration of [Jean’s] estate and of [Alexander]'s estate and the welfare of the beneficiaries of those estates if a single independent professional administrator were appointed in place of Julian (and in place of the Defendants in respect of [Jean’s] estate).”
“By reason of Julian's conduct in relation to the Trust and in relation to [Alexander]'s estate and [Jean’s] estate (as set out above), the Defendants have now lost all trust and confidence in Julian as a trustee of the Trust.”
“In the premises by way of counterclaim the Defendants seek the relief set out below. a. Pursuant tos.50 of the Administration of Justice Act 1985 orders: i. for the removal of the Defendants and (in so far as he has any right or claim to be entitled to a grant in relation to the same) also Julian as personal representative of [Jean’s] estate and the appointment of an independent professional administrator in their place; and ii. for the removal of Julian as executor of [Alexander]'s estate and the appointment of an independent professional administrator in his place (being the same person as is appointed to administer [Jean’s] estate). b. And further: i. an order that Julian do deliver full estate accounts of his dealings with the assets of [Alexander]'s estate and of his administration of that estate from the date of [Alexander]'s death to the other beneficiaries of that estate and the administrator of that estate appointed pursuant tothis claim; ii. further or other relief in respect of the administration of the estates of [Jean] and of [Alexander]. c. Pursuant tosection 41 of the Trustee Act 1925 an order replacing Julian and Mr George as trustees of the Trust with two independent professional trustees (one of whom being the same person appointed as personal representative in accordance with the above). d. And further: i. an order that Julian and Mr George do deliver trust accounts in relation to the Trust to the default beneficiaries of the Trust and to the trustees appointed in accordance with the above; and ii. further or other relief with respect to the administration of the Trust. e. And that the costs of this counterclaim be provided for.” a. Pursuant tos.50 of the Administration of Justice Act 1985 orders: i. for the removal of the Defendants and (in so far as he has any right or claim to be entitled to a grant in relation to the same) also Julian as personal representative of [Jean’s] estate and the appointment of an independent professional administrator in their place; and ii. for the removal of Julian as executor of [Alexander]'s estate and the appointment of an independent professional administrator in his place (being the same person as is appointed to administer [Jean’s] estate). b. And further: i. an order that Julian do deliver full estate accounts of his dealings with the assets of [Alexander]'s estate and of his administration of that estate from the date of [Alexander]'s death to the other beneficiaries of that estate and the administrator of that estate appointed pursuant tothis claim; ii. further or other relief in respect of the administration of the estates of [Jean] and of [Alexander]. c. Pursuant tosection 41 of the Trustee Act 1925 an order replacing Julian and Mr George as trustees of the Trust with two independent professional trustees (one of whom being the same person appointed as personal representative in accordance with the above). d. And further: i. an order that Julian and Mr George do deliver trust accounts in relation to the Trust to the default beneficiaries of the Trust and to the trustees appointed in accordance with the above; and ii. further or other relief with respect to the administration of the Trust. e. And that the costs of this counterclaim be provided for.”
“14. The legal framework is not contentious and is taken from Chief Master Marsh’s line of authorities. In summary: (1) The core guide is the welfare of the beneficiaries, and the discretion is to be exercised in a pragmatic way. (2) The court must consider first whether the circumstances are such that the discretion is engaged, second whether an order should be made, and third what order should be made. (3) It is unnecessary for the court to find wrongdoing or fault or a lack of good faith. The guiding principle is whether the administration of the estate is being carried out properly. Put another way, is it in best interests of the beneficiaries to replace the personal representative? (4) If there is wrongdoing or fault and it is material such as to endanger the estate the court is likely to exercise its power to replace. However, if the criticism is minor and will not affect the administration of the estate it may not be necessary to exercise the power to replace. (5) The wishes of the testator expressed in the will concerning the identity of the personal representatives is a factor to take into account. (6) The wishes of the beneficiaries may also be relevant, but the beneficiaries as whole or some of them have no right to demand replacement and the court has to make a balanced judgment between competing points of view as to what is in the interests of the beneficiaries as a whole. (7) In the absence of material wrongdoing or fault, the court must consider whether it has become impossible or difficult for the personal representatives to complete the administration of the estate or trusts. The court must review what has been done and what remains to be done. A breakdown in the relationship between some or all of the beneficiaries and the personal representatives will not without more justify their replacement. If, however, the breakdown of relations makes the task of the personal representatives difficult or impossible, replacement may be the only option. Friction or hostility between the trustees and beneficiaries is not of itself a reason for removal, but where that hostility is grounded on the mode in which the trust or estate is being administered, it is relevant. (8) Where the personal representative is or may be in a position of conflict because of intimated claims against him which need to be investigated, this is relevant. Conflict does not have to be established to merit removal; an outward appearance of potential for conflict can result in removal. (9) The additional cost of replacing some or all of the personal representatives in favour of professionals is a material consideration. The size of the estate and the scope of the work which will be needed will have to be considered. (10) It is rarely necessary for an application to result in a trial because it is usually unnecessary to make findings in respect of issues of fact. In fact, in circumstances where the application may be the precursor to a devastavit claim or similar, it is important for the court not to make findings of fact. The approach of the court is whether there appears on the evidence available (or likely to be obtained at proportionate cost) the basis for a claim which has reasonable prospects of success, subject to consideration of available defences. Such a claim must enhance the value of the estate relative to the costs of pursuing it. The evidence need not be determinative, but must not be speculative or contingent. A single borderline complaint might not merit investigation, but a number of complaints viewed as a whole may justify replacement and investigation. (11) It is not open to the parties to demand a trial or require a certain number of days for trial. It is for the court to control. It is exceptional for applications under section 50 or under the inherent jurisdiction to require a full trial. The use of the part 7 procedure, if even appropriate, does not inevitably lead to a trial with cross examination of witnesses.”
“I do not propose to go through all of the issues raised by the parties and recite all the evidence referred to by the parties’ respective counsel. It is not pragmatic to do so, not least because in accordance with authority making findings of fact is unnecessary and may be inappropriate.”
“The Claimant shall pay the First and Second Defendants’ costs of and incidental to the Counterclaim to be assessed on the standard basis and the Application assessed on the indemnity basis, both of which shall be the subject of a single detailed assessment if not agreed.”
“The Claimant shall not be permitted to indemnify himself from the assets of the Estates or Trust in respect of his own costs, expenses or liabilities of or incidental to this litigation subject to the provisions of that order, The Claimant has a statutory right of indemnity in relation to the costs of the administration of the Estates and Trust.”
“1. The only reason given in section 11 for the stay is that if an independent administrator is appointed pursuant to the Order the estate will necessarily incur more expense in transferring all the files and getting on top of things in order to begin administering the estate. But in the circumstances of this case, that seems to me to be a sound reason where the Appellant is proposing to challenge his removal as executor on appeal. 2. I note that DJ Wales came to a firm conclusion that the Appellant should be removed because of the conflicts of interest that have arisen in relation to the administration of the estate, but it seems to me that the ring should be held pending consideration of the application for permission to appeal. When that is considered, a further order can be made either continuing the stay until final disposal or removing it. It does seem to me to be potentially prejudicial to all the parties and the estate to incur the costs that might be wasted if the Appellant were to win his appeal. 3. I do not think that much needs to be done in relation to the estate in the meantime and I would urge the Appellant to restrain from taking decisions in relation to the estate until progress on the appeal is further determined.”
“1. While I understand the desire of District Judge Wales (the ‘Judge’) to move things along in the administration of the estates of Jean and Alexander Fernandez and can see that he came to the ‘firm conclusion’ that the Appellant needed to be removed as executor and trustee, I consider that he arguably miscalculated and erred in law in determining that that was the appropriate way forward in the circumstances of this case. While the litigation had been progressing very slowly, there were moves for the factual disputes between the parties to be resolved at a trial. The Judge considered that that was probably the wrong route to take and that the better course was to adopt a more summary procedure of deciding to remove the Appellant as aforesaid and the imposition of an independent professional trustee. 2. The Grounds of Appeal are extensive and perhaps a little over elaborate. But I do consider that they pass the threshold of having a real prospect of success on appeal. The Judge decided to adopt the procedure he did, for possibly sound case management reasons and in accordance with the guidance of Schumacher v Clarke[2019] EWHC 1031 and clearly balanced many factors as set out in paragraph 19 of his careful judgment. However, after years of litigation but also much progress in the administration of the estates such that there is relatively little remaining to be resolved – being mainly Courtfield Road and the various accounting and disputed items as between the Appellant and the Respondents – I think that an appeal should scrutinise whether the removal of the Appellant is actually the best and cheapest way of resolving these outstanding issues. 3. Of course there is a danger that spending time and money on an appeal will be wasted but there is also the expense of a professional trustee who may have to litigate as well if the Judge’s solution remains in place. I know that mediation has been attempted in this case but it will be referred automatically to the High Court Appeals Mediation Scheme and I hope that every effort will be made by all parties to settle this out of court. It is in no one’s interests to prolong this litigation, diminishing the assets in the estates. But having concluded that there are real prospects of success on this appeal, I must give permission to appeal. The stay will continue in the meantime.”
“So far as the second ground for interference is concerned, it must be noted that the appeal court only has power to interfere if the procedural or other irregularity which it has detected in the proceedings in the lower court was a serious one, and that this irregularity caused the decision of the lower court to be an unjust decision.”
“(i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong. (ii) The adverb ‘plainly’ does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.”
“ … it is of the essence of [a judicial] discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
“21. … (8) It being a matter of judicial discretion, this court will not interfere with the first instance judge's decision unless it is flawed by a misdirection in law or by a failure to have regard to relevant considerations or the taking into account of considerations that are irrelevant, or the judge's conclusion is clearly wrong and beyond the scope of legitimate judgment … ”
“16. First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court. 17. Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial … 18.
“i. Nicholas’ advance inheritance -£90,000 ii. Julian’s labour costs and out of pocket expenses. iii. MG/Martin Motors invoice – disputed. iv. Items of value removed by Leessa from Seathrift.”
“It seems to their Lordships that the jurisdiction which a Court of Equity has no difficulty in exercising under the circumstances indicated by Story is merely ancillary to its principal duty, to see that the trusts are properly executed. This duty is constantly being performed by the substitution of new trustees in the place of original trustees for a variety of reasons in non-contentious cases. And therefore, though it should appear that the charges of misconduct were either not made out, or were greatly exaggerated, so that the trustee was justified in resisting them, and the Court might consider that in awarding costs, yet, if satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate.”
“46. The overriding consideration is, therefore, whether the trusts are being properly executed; or, as [Lord Blackburn] put it in a later passage, the main guide must be ‘the welfare of the beneficiaries’. He referred to cases in which there was a conflict between trustee and beneficiary and continued: ‘As soon as all questions of character are as far settled as the nature of the case admits, if it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee, and if there is no reason to the contrary from the intentions of the framer of the trust to give this trustee a benefit or otherwise, the trustee is always advised by his own counsel to resign, and does so. If, without any reasonable ground, he refused to do so, it seems to their Lordships that the Court might think it proper to remove him; but cases involving the necessity of deciding this, if they ever arise, do so without getting reported.’ 47. He added, however, at page 389: ‘It is quite true that friction or hostility between trustees and the immediate possessor of the trust estate is not of itself a reason for the removal of the trustees. But where the hostility is grounded on the mode in which the trust has been administered, where it has been caused wholly or partially by substantial overcharges against the trust estate, it is certainly not to be disregarded’.” ‘As soon as all questions of character are as far settled as the nature of the case admits, if it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee, and if there is no reason to the contrary from the intentions of the framer of the trust to give this trustee a benefit or otherwise, the trustee is always advised by his own counsel to resign, and does so. If, without any reasonable ground, he refused to do so, it seems to their Lordships that the Court might think it proper to remove him; but cases involving the necessity of deciding this, if they ever arise, do so without getting reported.’ ‘It is quite true that friction or hostility between trustees and the immediate possessor of the trust estate is not of itself a reason for the removal of the trustees. But where the hostility is grounded on the mode in which the trust has been administered, where it has been caused wholly or partially by substantial overcharges against the trust estate, it is certainly not to be disregarded’.”
“[9] i. It is unnecessary for the court to find wrongdoing or fault on the part of the personal representatives. The guiding principle is whether the administration of the estate is being carried out properly. Put another way, when looking at the welfare of the beneficiaries, is it in their best interests to replace one or more of the personal representatives? ii. If there is wrongdoing or fault and it is material such as to endanger the estate the court is very likely to exercise its powers under section 50. If, however, there may be some proper criticism of the personal representatives, but it is minor and will not affect the administration of the estate or its assets, it may well not be necessary to exercise the power. iii. The wishes of the testator, as reflected in the will, concerning the identity of the personal representatives is a factor to take into account. iv. The wishes of the beneficiaries may also be relevant. I would add, however, that the beneficiaries, or some of them, have no right to demand replacement and the court has to make a balanced judgment taking a broad view about what is in the interests of the beneficiaries as a whole. This is particularly important where, as here, there are competing points of view. v. The court needs to consider whether, in the absence of significant wrongdoing or fault, it has become impossible or difficult for the personal representatives to complete the administration of the estate or administer the will trusts. The court must review what has been done to administer the estate and what remains to be done. A breakdown of the relationship between some or all of the beneficiaries and the personal representatives will not without more justify their replacement. If, however, the breakdown of relations makes the task of the personal representatives difficult or impossible, replacement may be the only option. vi. The additional cost of replacing some or all of the personal representatives, particularly where it is proposed to appoint professional persons, is a material consideration. The size of estate and the scope and cost of the work which will be needed will have to be considered.”
“19. The discretion under section 50 is to be exercised in a pragmatic way … The need for the court to take a pragmatic approach to the jurisdiction has been disregarded by parties who have, on both sides, adopted an approach that is indulgent and wasteful. Much of the evidence is of limited assistance to the court. 20. At the hearing the court has to consider first, whether the circumstances are such that the discretion is engaged, secondly whether an order should be made under section 50 and, thirdly, if so, what order is appropriate. I would add that it will only rarely be necessary for an application under section 50 to result in a trial because it is usually not normally necessary to make findings in relation to disputed issues of fact for the purposes of dealing with the application. 21. The principles to be applied are not in dispute. The applicants have relied on my attempt to summarise them in Harris v Earwicker[2015] EWHC 1915 (Ch) at [9] … ”
“22. The core guide to the exercise of the court’s discretion derives from the judgment of Lord Blackburn in Letterstedt v Broers(1884) 9 App Cas 371 , as applied to applications under section 50 by Lewison J in Thomas and Agnes Carvel Foundation v Carvel[2008] Ch 395 . It is the welfare of the beneficiaries.”
“18. It is critical for present purposes that the core concern of the court is what is in the best interests of the beneficiaries looking at their interests as a whole. The power of the court is not dependent on making adverse findings of fact, and it is not necessary for the claimant to prove wrongdoing. It will often suffice for the court to conclude that a party has made out a good arguable case about the issues that are raised. If there is a good arguable case about the conduct of one or more of the executors or trustees, that may well be sufficient to engage the court's discretionary power under s.50, or the inherent jurisdiction, and make some change of administrator or trustee inevitable. The jurisdiction is quite unlike ordinary inter partes litigation in which one party, of necessity, seeks to prove the facts its cause of action against another party.”
“(1) The court may, whenever it is expedient to appoint a new trustee or new trustees, and it is found inexpedient difficult or impracticable so to do without the assistance of the court, make an order appointing a new trustee or new trustees either in substitution for or in addition to any existing trustees or trustees, or although there is no existing trustee … ”
“25. … The exercise of the court’s inherent jurisdiction to remove a trustee is exceptional in the sense that it is not a jurisdiction that is commonly exercised, because the power under section 41 usually suffices. There is no basis, however, for adding a threshold test of exceptionality and the corollary that a strong case must be made out if the application is made under the inherent jurisdiction. This is because the jurisprudence dealing with the exercise of the power, whether exercised under section 41 or under the inherent jurisdiction, already has built within it adequate checks and balances. The court will never remove a trustee lightly. The court will always wish to consider the application in light of all the circumstances, with the welfare of the beneficiaries firmly in mind. If there has been misconduct by the trustees, it is likely that an order for removal will be made. On the other hand, the fact that the beneficiaries have fallen out with the trustees is likely to be insufficient on its own.”
“19. … (2) Relationship breakdown is not sufficient of itself to justify the replacement of an executor/trustee, but it is relevant where the administration of the estate/trust is compromised.”
“It is an inflexible rule of a Court of Equity that a person in a fiduciary position, such as the respondent's, is not, unless otherwise expressly provided, entitled to make a profit; he is not allowed to put himself in a position where his interest and duty conflict. It does not appear to me that this rule is, as has been said, founded upon principles of morality. I regard it rather as based on the consideration that, human nature being what it is, there is danger, in such circumstances, of the person holding a fiduciary position being swayed by interest rather than by duty, and thus prejudicing those whom he was bound to protect. It has, therefore, been deemed expedient to lay down this positive rule.”
“Nevertheless, even if the possibility of conflict is present between personal interest and the fiduciary position the rule of equity must be applied. This appears from the observations of Lord Cranworth LC in Aberdeen Railway Co v Blaikie.”
“The relevant rule for the decision of this case is the fundamental rule of equity that a person in a fiduciary capacity must not make a profit out of his trust which is part of the wider rule that a trustee must not place himself in a position where his duty and his interest may conflict.”
“The phrase ‘possibly may conflict’ requires consideration. In my view it means that the reasonable man looking at the relevant facts and circumstances of the particular case would think that there was a real sensible possibility of conflict; not that you could imagine some situation arising which might, in some conceivable possibility in events not contemplated as real sensible possibilities by any reasonable person, result in a conflict.”
“A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of thefiduciary.”
“16. The essential purpose of the rule that a fiduciary must not without his principal’s consent keep for himself a profit from his position as such, and the related rule that a fiduciary must avoid placing himself in a position where his interest and his duty may conflict (usually called the conflict rule), is to protect or deter those who have undertaken an obligation of single-minded loyalty to someone else from being tempted by human frailty to fall short of that obligation … 17. I have taken the phrase ‘single-minded loyalty’ as the hallmark of a fiduciary undertaking from Bristol and West Building Society v Mothew[1998] Ch 1 , 18 per Millett LJ. It was a case in which claims for breach of duty of care and fiduciary duty were bundled together, so that it was a suitable platform for an explanation of what is special about a duty or relationship being fiduciary.”
“It cannot be doubted that the trustees have ever since been in a position where their interests as tenants may conflict with their duties as trustees to the estate of [the deceased sibling]. But the conclusive objection to the application of the absolute rule on which [counsel for the sibling’s estate] relies is that it is not they who have put themselves in that position. They have been put there mainly by the testator's grant of the tenancies and by the provisions of his will and partly by contractual arrangements to which [the sibling] himself was a party and of which his representatives cannot complain. The administrators cannot therefore complain of the trustees' continued assertion of their rights as tenants.”
“Since the absolute rule on which [counsel] relies does not apply, there is no absolute requirement that the trustees should appoint a new trustee before making any sale subject to the tenancies. Nor is there any absolute bar to their selling to themselves so long as the tenancies subsist. On the other hand, they must continue to discharge their fiduciary duties to [the deceased sibling]’s estate in regard to the freeholds, in particular by obtaining the best price for them subject to the tenancies. In the end, the basis for [counsel]’s arguments was seen to be a fear or a suspicion that the trustees will not properly discharge that duty. But there is no evidence either that they have failed to discharge their duties in the past or that they will fail to do so in the future. Without such evidence, it is wholly inappropriate for the court to interfere.”
“Nevertheless, there is no doubt that the trustees' decision can be set aside if it can be shown that they failed to consider matters which were relevant, or took into account matters which were irrelevant.”
“42. The emphasis is thus on whether the behaviour of the paying party or the circumstances of the case take it out of the norm. The merits of the case are relevant in determining the incidence of costs: but, outside the context of an entirely hopeless case, they are of much less, if any, relevance in determining the basis of assessment. 43. The cases cited show that amongst the factors which might lead to an indemnity basis of costs are (1) the making of serious allegations which are unwarranted and calculated to tarnish the commercial reputation of the defendant; (2) the making of grossly exaggerated claims; (3) the speculative pursuit of large-scale and expensive litigation with a high risk of failure, particularly without documentary support, in circumstances calculated to exert commercial pressure on a defendant; (4) the courting of publicity designed to drive a party to settlement notwithstanding perceived or unaddressed weaknesses in the claims.”
“ … The power of the court is not dependent on making adverse findings of fact, and it is not necessary for the claimant to prove wrongdoing. It will often suffice for the court to conclude that a party has made out a good arguable case about the issues that are raised … ”
“9. … [The respondents’ solicitors] decided, without permission of the Court, that by virtue of them filing the application, they need not comply, and have not – that of course, was simply wrong, as they required the Court’s permission and now require relief from sanction to file any evidence. The consequence is that there ought to be an adverse costs order against Leesa [sic] and Nick.”
“It is not my understanding that the claimant is saying that he can indemnify himself in relation to his own costs out of the estate or anything like that.”
“The following circumstances take a case out of the norm and justify an order for indemnity costs, particularly when taken in combination with the fact that a defendant has discontinued only at a very late stage in proceedings; (a) Where the claimant advances and aggressively pursues serious and wide ranging allegations of dishonesty or impropriety over an extended period of time; (b) Where the claimant advances and aggressively pursues such allegations, despite the lack of any foundation in the documentary evidence for those allegations, and maintains the allegations, without apology, to the bitter end; (c) Where the claimant actively seeks to court publicity for its serious allegations both before and during the trial in the international, national and local media; (d) Where the claimant, by its conduct, turns a case into an unprecedented factual enquiry by the pursuit of an unjustified case; (e) Where the claimant pursues a claim which is, to put it most charitably, thin and, in some respects, far-fetched; (f) Where the appellant pursues a claim which is irreconcilable with the contemporaneous documents; (g) Where a claimant commences and pursues large-scale and expensive litigation in circumstances calculated to exert commercial pressure on a defendant, and during the course of the trial of the action, the appellant resorts to advancing a constantly changing case in order to justify the allegations which it has made, only then to suffer a resounding defeat.”
“27. … The indemnity basis is appropriate where the conduct of the parties or, in the particular circumstances of the case or both, were such as to take the case out of the norm… meaning that the conduct complained of is something outside the ordinary and reasonable conduct of proceedings.”
“38. At that point, it seems to me it was clear to the claimant that the administration could not be completed while he was in post and the hostile relationship between the parties continued. Furthermore, it seems clear to me that the claimant must have been aware that he had a conflict of interest. He continued to make his claims against the estate to be paid as a carer for his father, to be paid as a caretaker and gardener of Seathrift. The defendants continued to maintain claims that he should account to the estate for the use of Seathrift. The defendant continued to maintain that the estate had a claim against the claimant in respect of a debt, albeit disputed by the claimant. All of those matters meant that the claimant had a clear conflict of interest and in my judgment the only option was to step down.”