Catherine O’Boyle v Mary Vivien Wallis [2026] EWHC 1386 (Ch)

[2026] EWHC 1386 (Ch)Case No CH-2025-000231Case No BL-2023-000116
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 16 June 2026
Before
Andrew Twigger K.C.
Between
CATHERINE O’BOYLEFirst Claimant / AppellantMARY VIVIEN WALLISDefendant / Respondent
Mr Farhan Asghar (instructed by TSABI Ltd.) for First Claimant / AppellantMs Daria Gleyze (instructed by Adam & Remers LLP) for Defendant / Respondent
Approved JudgmentThis judgment was handed down remotely at 10.30 am on 16 June 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Andrew Twigger K.C. :

[1]In my reserved judgment in this matter dated 28 April 2026 (“the Judgment”) I allowed Ms O’Boyle’s appeal against the order of Master Kaye dated 18 July 2025 in part. I subsequently gave directions for written submissions to be filed in relation to any consequential matters, with a view to my deciding them on the papers, in the interests of saving costs and court time. This is my judgment in relation to the various matters which have been raised. In the interests of brevity, I will assume that the reader is familiar with the Judgment. I will also adopt the definitions used in the Judgment.[2]Ms Gleyze (for Mrs Wallis) has helpfully provided a version of a draft order which sets out the rival wordings proposed by each of the parties (“the Draft Order”). It is convenient to work through that Draft Order, paragraph by paragraph.

Paragraph 1

[3]In relation to paragraphs 78 to 88 of the Judgment, dealing with whether the Appellant required an extension of time for her appeal, the parties have agreed that the order should record that the time for the Appellant to file the Appellant’s Notice be extended to 21 August 2025. My primary decision was that an order for such an extension was already implicit in Mellor J's order granting permission to appeal, so it seems to me that the order to be made now should say, “So far as necessary, the time … is extended.”

Paragraph 2

[4]Mr Asghar submits that paragraph 2 should simply record that the appeal is allowed, whereas Ms Gleyze submits that it should say that the appeal is allowed “to the extent set out below.” Since the appeal was only allowed in part, and the Appellant remains liable for some of the costs of the proceedings, I consider that Ms Gleyze’s additional wording should be included.

Paragraph 3

[5]In order to reflect my decision regarding the Appellant’s liability for the costs of the proceedings, paragraph 3 of the Draft Order provides that paragraph 2 of Master Kaye’s Order is to be varied, and then sets out the proposed revised text. The wording of proposed sub-paragraph 2A, which deals with the costs liability of Mr O’Boyle’s estate and Mrs O’Boyle, is agreed.[6]The wording of proposed sub-paragraph 2B is, however, disputed in several respects. The Appellant’s version reads as follows:
“2B. Ms Catharine O’Boyle must pay the Defendant’s costs of the claim incurred as against her and the estate of Mr Paul O’Boyle between 14 March 2025 and 18 July 2025, to be subject to detailed assessment on the standard basis, if not agreed.”
[7]Mrs Wallis’s version reads thus:
“2B. Ms Catharine O’Boyle must pay the Defendant’s costs of the claim from 14 March 2025 (which include the costs ordered in the order of the same date) to 18 July 2025, to be assessed on the standard basis, to be subject to detailed assessment if not agreed.”
[8]I have indicated the principal differences between the parties in bold italics, although there are other less significant points, which I address below.[9]Mr Asghar submits that the words “incurred as against her and the estate of Mr Paul O’Boyle” are required because the Appellant ought not to be jointly liable for the costs Mrs Wallis incurred defending the claim brought by Mrs O’Boyle (as opposed to that brought by Mr O’Boyle or his estate). Mr Asghar says that the costs referable to Mrs O’Boyle’s claim were not caused by the Appellant, but by Mrs O’Boyle, so that making the Appellant jointly liability for those costs would be a “punitive measure.”[10]In paragraph 45 of her judgment, Master Kaye said:
“There are two Claimants, Mr O’Boyle’s estate and Mrs O’Boyle. Mrs O’Boyle has been a claimant since 2022 and there is no distinction in the way in which the claim is advanced that enables there to be a separation of liability between the Claimants. The Claimants are therefore jointly and severally liable for the costs.”
[11]This aspect of Master Kaye’s reasoning was not the subject of the appeal. Mr Asghar did not, so far as I can recall, criticise paragraph 45 of her judgment at the hearing. His point was that Master Kaye was wrong to treat the Appellant as necessarily liable for the same costs as those ordered against Mr O’Boyle’s estate; he did not suggest that it was either legally or factually possible to separate the costs caused by the Appellant during the period when she was acting as representative of Mr O’Boyle’s estate from those caused by Mrs O’Boyle during the same period. It is not, therefore, open to the Appellant to raise this new point after her appeal has been decided.[12]In any case, Master Kaye’s reasoning seems to me to be correct, based on my understanding of the nature of the claims. Mrs O’Boyle’s claim was not independent of that of her former husband but was an integral part of it. Until the hearing on 18 July 2025, Mr and Mrs O’Boyle’s claims were pursued by the claimants acting together (including in the period during which the Appellant was representing Mr O’Boyle’s estate). It would, therefore, be contrary to principle for Mrs Wallis not to have recourse against them for her costs on a joint and several basis (although, in the Appellant’s case, only during the period from 14 March 2025 to 18 July 2025). Moreover, it would be impractical (if it is possible at all) to require Mrs Wallis to have to identify now whether it was Mr O’Boyle or the Appellant, as opposed to Mrs O’Boyle, who caused each item of costs she has incurred. The words “incurred as against her and the estate of Mr Paul O’Boyle” will not, therefore, be included in my order.[13]Ms Gleyze submits that the words “(which include the costs ordered in the order of the same date)” should be included to make clear that Mrs Wallis is entitled to recover her costs of dealing with the Appellant’s application to be appointed as representative of Mr O’Boyle’s estate from the Appellant. As explained in the Judgment, the order appointing the Appellant was made on 14 March 2025, but Mrs Wallis necessarily incurred costs dealing with that application prior to that date.[14]Whilst it is possible to imagine circumstances in which the Appellant should not have to bear costs of the application seeking her appointment, for example if Mrs Wallis had opposed it and lost, Master Kaye cannot have considered that there were any such circumstances because her order of 14 March 2025 appointing the Appellant included an order for “costs in the case.” The claims were ultimately struck out, as explained in the Judgment, and costs orders were made in Mrs Wallis’s favour. It seems to me, therefore, that Ms Gleyze is correct that, as a matter of principle, the Appellant’s liability for costs should include any costs reasonably and proportionately incurred by Mrs Wallis in connection with the Appellant’s application to be appointed. Those are costs which were caused by the Appellant. Mr Asghar has not suggested otherwise in his written submissions. The words proposed by Ms Gleyze will, therefore, be included in the order.[15]A more trivial difference between the parties’ rival formulations of the Draft Order is the Appellant’s expression “between 14 March 2025 and 18 July 2025” compared to the Respondent’s expression “from 14 March 2025 … to 18 July 2025.” In so far as it matters, I prefer the latter expression, which removes any potential doubt about whether costs incurred on 14 March 2025 are included (as they are intended to be).[16]The final difference is the Appellant’s expression “to be subject to detailed assessment on the standard basis, if not agreed” compared to the Respondent’s expression “to be assessed on the standard basis, to be subject to detailed assessment if not agreed.” This trivial issue should have been capable of agreement. I prefer the former expression, which is standard and mirrors the wording of the proposed paragraph 2A.

Paragraph 4

[17]Paragraph 4 of the Draft Order deals with payment on account of costs, which I addressed in paragraphs 166 to 168 of the Judgment. As before, the draft provides that paragraph 3 of Master Kaye’s Order is to be varied, and then sets out the proposed revised text. The proposed wording of sub-paragraph 3A, which deals with the £100,000 payment on account by Mr O’Boyle’s estate and Mrs O’Boyle, is agreed.[18]The proposed sub-paragraph 3B deals with a payment on account by the Appellant. CPR 44.2(8) provides that, when a party is ordered to pay costs subject to detailed assessment, the court will order a reasonable sum to be paid on account of costs, unless there is good reason not to do so. I understand the Appellant accepts in principle that it was appropriate for some payment on account to be ordered.[19]Although there had been a dispute about the date of payment, I understand from Mr Asghar’s written submissions that it is now common ground that the date should remain 15 August 2025, as originally provided for in Master Kaye’s Order. The only remaining dispute, therefore, concerns the quantum of the payment. Mrs Wallis says the amount should be £45,489.15, whereas the Appellant says it should be £10,000. I do not understand there to be any dispute as to the approach to be taken to the determination of a reasonable sum, as summarised in the White Book commentary on CPR 44.2(8). This is frequently an estimate of the likely level of recovery subject to an appropriate margin for error.[20]As explained in paragraph 166 of the Judgment, Mrs Wallis is said to have incurred costs of around £200,000 in total during the course of the proceedings, of which around £40,000 had been paid by the time of the hearing on 18 July 2025. I have now been provided with a statement of costs filed on behalf of Mrs Wallis which is said to cover the period “including the CPR 19.12 application to 18 July 2025”. This is intended to reflect my decision that the Appellant is liable (jointly with Mrs O’Boyle and Mr O’Boyle’s estate) for Mrs Wallis’s costs incurred from 14 March 2025 to 18 July 2025. That schedule totals £60,652.20 (including VAT) and the interim payment sought is 75% of that sum.[21]Bearing in mind my decision that these costs are to be assessed on the standard basis, I have reviewed the schedule and cannot discern any amounts claimed which appear obviously unreasonable or disproportionate when considered individually. Standing back from the detail, however, I am concerned about two issues.[22]The first is that these proceedings had been ongoing for nearly five years at the time of the hearing on 18 July 2025, during which Mrs Wallis’s total costs are said to have been around £200,000. Yet £60,652 (being around 30% of the total sum) is said to have been incurred in the last four months before the hearing, which is less than 10% of the total life of the claim. Ms Gleyze’s written submissions say that the hearing on 15 April 2025 was “the first substantive hearing of the numerous applications before the Master”, yet the Master had handed down a written judgment on 15 March 2024 following a hearing on 30 November 2023 dealing with what appear to have been substantial strike out and amendment applications. Her judgment on that occasion runs to 34 pages and makes clear that numerous issues were argued at that stage. Moreover, it is clear from the Master’s judgment on 18 July 2025 that there were also hearings in May 2024 and October 2024, as well as hearings which occurred before November 2023. I understand that Mrs Wallis was represented by counsel throughout. Accordingly, whilst I do not doubt that substantial work was undertaken for the hearings in April and July 2025, the evidence available suggests that the costs sought in respect of the work undertaken in that period are disproportionately high compared with the costs claimed for earlier work.[23]The second issue gives me greater concern. In paragraph 168 of the Judgment, I said that it seemed wrong to make an order for an interim payment without knowing how much TF had paid in respect of wasted costs. Despite that indication, no evidence has been provided (even on a confidential basis) about the amount paid by TF, or the particular costs to which that payment was said to relate. All I have is a submission by Ms Gleyze, presumably on instructions, that the Appellant “can confirm, without going into the details of the confidential settlement agreement with [TF], that none of these costs were, or are going to be, paid by [TF], so there is no double recovery.” In the absence of any evidence or further explanation, I do not see how this can be correct.[24]As explained in paragraph 156 of the Judgment, TF remained instructed by the Claimants after 14 March 2025 until around the end of June 2025. During that period, they issued an application for permission to amend, instructed counsel for the hearing on 15 April 2025 and filed the witness statement of Mr Sclater on 29 April 2025. Master Kaye was critical about the application and Mr Sclater’s statement. It appears to follow that at least some of the wasted costs caused by TF were incurred by Mrs Wallis during the period from 14 March 2025 to 18 July 2025. Indeed, as part of her explanation for the level of costs sought, Ms Gleyze says in her skeleton that “very significant time was spent preparing this hearing” (meaning the hearing on 15 April 2025) and that numerous further issues were addressed in correspondence between March and July 2025.[25]Thus, in the absence of any evidence explaining otherwise, however much TF paid in settlement of the wasted costs application, part of that sum must be attributable to costs incurred during the period in respect of which Mrs Wallis now seeks an interim payment. If there are good reasons for not attributing any of the sum paid by TF to the costs incurred in that period, they are not the subject of any evidence and have not been explained. Moreover, I have no information about the quantum of TF’s payment. It may, of course, have been a relatively modest sum; but it may have been significant. Mr Asghar’s skeleton describes it as “an undisclosed sum,” from which it appears that not even the Appellant knows how much TF paid.[26]In these unsatisfactory circumstances, the position remains as indicated in the Judgment. It is not reasonable or just to order an interim payment in respect of costs which have (or might well have) already been paid by TF, and there is no evidence concerning what TF has actually paid or how that sum has been attributed throughout the period during which TF was acting for the Claimants. Mrs Wallis has, accordingly, provided insufficient information to enable a reliable assessment of a sum which it is reasonable to order the Appellant to pay.[27]Nevertheless, in his skeleton Mr Asghar proposes an order for a payment on account of costs of £10,000. This is a relatively modest amount and since, for the reasons I have given, I am in no position to make a better estimate of the likely level of recovery, I will make an order in those terms.

Paragraph 5

[28]Paragraph 5 of the Draft Order concerns the costs of the appeal. The Appellant seeks an order that Mrs Wallis pays 90% of her costs of the appeal, summarily assessed in the sum of £4,049.89. Mrs Wallis contends for a range of alternative orders, the most favourable (to her) of which is that the Appellant should pay 40% of Mrs Wallis’s costs of the appeal, namely £6,998.88.[29]The general rule under CPR44.2(2)(a) is that the unsuccessful party should pay the successful party’s costs, but, pursuant to sub-rule 2(b), the court may make a different order. The court has a broad discretion, which includes the power under sub-rule (6) to make an order for one party to pay a proportion of another party’s costs, better to reflect the parties’ success or failure on particular issues.[30]In my judgment, the Appellant is plainly the successful party. I decided that Master Kaye’s approach, based on Ms Gleyze’s submissions, of holding a representative personally liable for whatever costs were payable by the estate, was wrong in principle. I also rejected all three of Mrs Wallis’s preliminary objections: standing, no extension of time to appeal and abuse of process.[31]It is right that when I came to exercise the court’s discretion afresh, I considered that the Appellant should be liable for Mrs Wallis’s costs from 14 March 2025 to 18 July 2025, although such costs are to be assessed on the standard basis rather than the indemnity basis. The Appellant has not, therefore, been successful in avoiding liability altogether. Nevertheless, I regard the suggestion that the Appellant should pay a proportion of Mrs Wallis’s costs as unrealistic. In my judgment, Mrs Wallis ought, in principle, to be liable for a proportion of the Appellant’s costs of the appeal.[32]Two issues arise, however. The first is whether the Appellant is entitled to claim any costs in circumstances in which her legal fees have been paid by third parties. The second is what proportion of the Appellant’s costs should be disallowed to reflect the partial nature of her success.[33]As to the first point, the Appellant has said in correspondence that “a small amount of legal assistance has been privately funded through third-party family support, including a small contribution from my partner.” Her schedule of costs shows that the entire sum claimed consists of Mr Asghar’s brief fee of £3,500, plus court fees and VAT, totalling £4,499.88. The schedule contains a statement electronically signed by the Appellant that, “The costs stated above do not exceed the costs which the Appellant are [sic] liable to pay in respect of the work which this statement covers. Counsel’s fees and other expenses have been incurred in the amounts stated above and will be paid to the persons stated.”[34]Ms Gleyze submits that it would contravene the indemnity principle for the Appellant to recover the claimed costs. She says that the Appellant does not appear to have any liability for the costs, which were paid by her family as “support” rather than a loan or arrangements requiring repayment. No evidence has been provided of the terms agreed with the funders.[35]In relation to the indemnity principle, the notes in the White Book, 2026 edition, at paragraph 44.2.5, refer to a number of cases and say:
“The message to be drawn from these cases is that the court is hostile to indemnity principle challenges, and will find the principle satisfied even if the liability of the beneficiary of the costs order to pay costs is close to notional (Thornley v Lang (2004) EWCA Civ 1484; (2004) 1 W.L.R. 378). The relevant question for the court is whether the receiving party has become liable to pay the costs claimed; who actually pays the costs is not relevant (Edwin Coe LLP v Popat (2013) EWHC 4524 (Ch), (Vos J)).”
[36]In the Edwin Coe case cited there, Vos J (as he then was) reviewed the relevant authorities, including Adams v London Improved Motor Coach Builders Limited [1921] 1 KB 499 in which, amongst other things, Bankes LJ said:
“When once it is established that the solicitors were acting for the plaintiff with his knowledge and assent, it seems to me that he became liable to the solicitors for costs, and that liability would not be excluded merely because the Union also undertook to pay the costs. It is necessary to go a step further and prove that there was a bargain, either between the Union and the solicitors, or between the plaintiff and the solicitors, that under no circumstances was the plaintiff to be liable for costs.”
[37]Mr Asghar has also referred me to the Court of Appeal decision in Bailey v IBC Vehicles Ltd [1998] 3 All ER 570 in which Judge LJ (as he then was) cited earlier authority which described the principle referred to in the above quotation from Adams as a “presumption” that a solicitor’s client is personally liable for costs.The presumption can only be rebutted by evidence of an express or implied binding agreement that the client would not have to pay the lawyer’s fees in any circumstances.[38]In my judgment, the authorities are clear that, as the client on whose behalf Mr Asghar was acting, the Appellant is presumed to have been personally liable for the fees charged by TSABI Ltd. It does not matter that the costs were actually paid by third parties, nor that there is no evidence of a loan. For there to be an infringement of the indemnity principle, Mrs Wallis would have to show that there was a binding agreement that the Appellant would not have to pay TSABI Ltd’s fees in any circumstances. The existence of the freezing order explains why the Appellant may not, in practice, have been able lawfully to pay TSABI Ltd herself at the time, but it cannot, in my judgment, be inferred that there was a binding agreement that the Appellant would never be liable to pay in any circumstances. Given the commendably modest fee charged by TSABI Ltd, it is easy to infer (and I do infer) that this was simply a case of relatives paying a fee which she was unable to pay, but for which she was nevertheless legally liable. I therefore reject Ms Gleyze’s challenge based on the indemnity principle.[39]The second issue concerns the proportion of the Appellant’s costs to be disallowed. Ms Gleyze submits that the Appellant’s overall liability for costs has only been decreased from around £144,000 (pursuant to Master Kaye’s Order) to around £60,000. She also argues that the Appellant is no better off as a result of the appeal, since she remains bankrupt and is unlikely to be able to pay even the lesser sum of £60,000.[40]For the reasons I have already given in relation to the payment on account, there is a question as to the proportionality of the £60,000 figure, based on the evidence currently before me. It is, in any event, mere speculation as to whether the Appellant will be unable to pay off her reduced liability, once its quantum is properly determined. Moreover, Mrs Wallis steadfastly maintained throughout her stance that the Appellant should be liable for her costs of the entire proceedings. The Appellant ought not, in my judgment, to be denied (some of) the costs of defeating that argument on the basis of speculation about whether her ultimate financial position will turn out to have improved.[41]Ms Gleyze also contends that much of the complexity of the appeal arose from the Appellant’s decision to make herself bankrupt, her failure to involve her trustee in bankruptcy, and her failure to obtain an assignment, or permission, from the trustee. That submission seems to ignore my decision that the Appellant had standing to pursue the appeal. Mrs Wallis wishes to appeal that aspect of my decision, but so far as the hearing before me was concerned, it was she who chose to raise these objections and lost.[42]Ms Gleyze further submits that the Appellant ought to bear Mrs Wallis’s costs of the application for an extension of time for permission to appeal in any event, even though she was successful, on the basis that it was, in effect, an application for relief from sanctions. I agree that this would be appropriate in many cases. The position in this case, however, is that (in my view) an order for such an extension was already implicit in Mellor J's order granting permission to appeal. When that order was made, Mrs Wallis might well have been entitled to her costs of dealing with that application up to that point, although I think it unlikely that any significant sums would have been incurred by then. Thereafter, although Ms Gleyze’s submissions were well expressed, I think her attempt to persuade me that an extension had not been granted, and should not be granted, was ambitious. Whilst Mrs Wallis was entitled to argue the point, she was not necessarily entitled to do so at the Appellant’s expense. I do not consider it just to reduce the Appellant’s relatively modest claim for costs on account of Mrs Wallis’s persistence in keeping the extension argument alive.[43]Nevertheless, as I have said, the Appellant was not wholly successful and it is, in my judgment, appropriate to reflect that outcome in the award of costs. Applying a broad brush, I consider that around 25% of the argument at the hearing related to the Appellant’s standing and that the issues concerning extension of time and abuse of process accounted for a further 25% of the argument between them. The majority of the argument in relation to the substantive appeal concerned the correct legal approach (whether, as a matter of law, a representative’s liability for costs should be commensurate with that of the estate being represented). Relatively little time was taken up dealing with how the discretion should have been exercised. There was also the point about exoneration, which Mr Asghar dropped during the hearing, but which is likely to have caused some costs to be incurred.[44]Looking at matters in the round, therefore, it seems to me appropriate to award the Appellant 80% of her costs. The total costs claimed are £4,499.88. I do not understand Ms Gleyze to take any issue with the quantum claimed. I will, accordingly, summarily assess the Appellant’s costs in the sum of £3,599.90. I agree with Ms Gleyze that Mrs Wallis’s liability for these costs should be set off against the Appellant’s liability to Mrs Wallis pursuant to paragraphs 2B and 3B of Master Kaye’s Order (as varied).

Paragraph 6

[45]Paragraph 6 of the Draft Order relates to permission to appeal. Ms Gleyze rightly accepts that I have no jurisdiction to grant permission for a second appeal. Accordingly, she does not seek permission from me to appeal my decision allowing (in part) the substantive appeal against Master Kaye’s Order. Nor does she seek permission from me in relation to my re-exercise of the Master’s discretion.[46]Ms Gleyze does, however, seek permission to appeal from me in relation to two matters: first, my decision that the Appellant has standing to appeal; and, secondly, my decision that the appeal involved no abuse of process.[47]Ms Gleyze has helpfully referred me to Zuckerman on Civil Procedure: Principles of Practice, 5th edition, at paragraph 25.108, Jolly v Jay [2002] EWCA Civ 277 and Handley v Lake Jackson Solicitors [2016] EWCA Civ 465. Those authorities have satisfied me that I have jurisdiction in principle to grant permission to appeal on the two issues identified by Ms Gleyze. They are both matters which arose for the first time at the hearing before me and my decisions about them are, therefore, original decisions which have not already been the subject of review. In making those decisions, I was not making a decision about the validity or otherwise of the Master’s decision, since she did not consider those matters.[48]Moreover, in deciding whether or not to grant permission in relation to these two issues, I must apply the first appeals test of whether the court considers that the appeal would have a real prospect of success, or there is some other compelling reason for the appeal to be heard. As is well known, the first limb of that test means that there must be a realistic, as opposed to a fanciful, prospect of success; there is no requirement to demonstrate that success is probable or more likely than not.[49]Ms Gleyze’s principal submission regarding my decision that the Appellant had standing to bring the appeal is that the Appellant’s status as a representative does not affect the fact that her liability for Mrs Wallis’s costs is personal. The Appellant holds no separate estate as a representative and her liability can only be satisfied out of her personal estate. Consequently, Mrs Wallis’s only avenue for recovery is to prove in the Appellant’s bankruptcy and other avenues of enforcement are closed. As I understand the argument, Ms Gleyze says that it follows from these points that this case is on all fours with Heath v Tang and GP Aviation Group, so that it was contrary to authority for me to find that the Appellant had standing to bring the appeal. Ms Gleyze says that it was unfair to Mrs Wallis for her to have to face the burden of the appeal in these circumstances and that the appeal has been a waste of everyone’s time and money, because the Appellant is still bankrupt and facing a significant liability.[50]The difficulty with this submission, in my judgment, is that Heath v Tang and GP Aviation Group are distinguishable, because they do not deal with the position of a representative party. Whether or not a litigant has standing to pursue an appeal essentially depends on whether the litigant has a sufficient interest in the subject matter of the appeal, as explained in paragraph 76 of the Judgment. Where the argument is solely about whether a bankrupt litigant owes money to a creditor, Heath v Tang holds that the litigant does not have a sufficient interest, because the impact of the argument is purely financial and affects only the bankrupt’s other creditors (represented by the trustee in bankruptcy). Win or lose, the bankrupt’s position remains the same.[51]But, for the reasons explained in the Judgment, the Appellant’s argument was not solely about whether she owed the debt to Mrs Wallis created by the Order; it also concerned the Appellant’s ongoing role as representative, in which she retains an interest independent of the interests of her creditors. The issue was about the principles to be applied when deciding whether the Appellant should have personal liability, whilst acting as representative, for costs incurred by Mrs Wallis. The Appellant has an interest in knowing the answer to that question despite her bankruptcy, not least because her role as representative has not yet come to an end (see below in relation to the freezing order). For that reason (and others given in the Judgment), I consider the Appellant retained a sufficient interest in the subject matter of the appeal to give her standing. That is essentially an evaluative judgment about the particular facts of this case, to which the logic of Heath v Tang is not applicable. I am not satisfied that Mrs Wallis has a real prospect of persuading the Court of Appeal that my evaluative judgment was not reasonably open to me in the circumstances.[52]I would add that I am unable to say whether the ultimate outcome means that the appeal was a waste of time and money (which may depend on one’s point of view) but even if it does, that seems to me irrelevant. Whether a litigant has standing to pursue an argument cannot depend on whether the argument is ultimately successful.[53]Ms Gleyze makes the following additional points: i) The Appellant’s trustee in bankruptcy has stated in correspondence dated 27 March 2026 that the Appellant’s right of appeal vested in the bankruptcy estate; ii) The Appellant was not bringing the appeal on behalf of Mr O’Boyle’s estate, in the way described as the “second analysis” in paragraphs 65 to 69 of the Judgment; iii) Nor was the Appellant seeking the court’s guidance and directions concerning her status as representative, in the way described as “third analysis” in paragraphs 70 to 73 of the Judgment; iv) I misunderstood the Appellant’s continuing involvement in relation to the freezing injunction in paragraph 74 of the Judgment; and v) The “analogy” with Dence v Mason drawn in paragraph 75 of the Judgment is inappropriate.[54]I am not persuaded that any of these points assist Mrs Wallis: i) The correspondence from the trustee in bankruptcy was written before my Judgment was handed down and the trustee’s opinion is not binding on me; ii) As I hope was clear from paragraph 69 of the Judgment, I did not decide the appeal on the basis of the “second analysis”; iii) The issue concerning the Appellant’s status as representative arose out of Ms Gleyze’s submission to Master Kaye that, as a matter of law, a representative was automatically personally liable for all costs ordered against the estate. It does not matter, in my judgment, that it was not a point raised by the Appellant in a formal application seeking guidance – as a matter of substance, it involved considering the consequences of her status as a representative; iv) I do not believe I misunderstood the nature of the freezing injunction – it was made in these proceedings, in which the Appellant continues to be the representative of Mr O’Boyle’s estate, as indicated by the title to the freezing order itself. It is the continuing appointment of the Appellant under CPR 19.12 which enables the freezing order to continue to bind the estate, pursuant to CPR 19.12(5). That illustrates why the Appellant remains interested in the principles applicable to her liability for Mrs Wallis’s costs in her role as representative. I am unable to draw any conclusions from the fact that (as I understand it) the trustee in bankruptcy has recently been involved in negotiating a variation of the freezing order, rather than the Appellant. I do not know the details of the negotiation, but it may be that the variations have not concerned the estate – I do not see how the trustee could represent Mr O’Boyle’s estate for those purposes as a matter of law; v) I agree that the matters which were “personal against” the bankrupt in Dence v Mason were contrasted with the bankrupt’s personal liability for costs, but the bankrupt in that case was not acting as a representative. I referred to the case in paragraph 75 of the Judgment because it illustrates that it is possible for a bankrupt to continue to have standing to appeal in relation to some issues despite the bankruptcy, if he has a sufficient interest in them.[55]In relation to abuse of process, Ms Gleyze makes four main points: i) Based on a passage in Phipson on Evidence, 21st edition, at paragraph 4-19, Ms Gleyze argues that the fact that the Appellant petitioned for her own bankruptcy on the basis of the debt to Mrs Wallis established by Master Kaye’s Order is “conclusive” and automatically precluded the Appellant from pursuing the appeal; ii) Ms Gleyze also refers to CPR 14.2(2) dealing with pre-action admissions and argues that the Appellant’s statements were, by analogy, pre-appeal admissions which “ought to prevent the party making the admissions from pursuing an appeal…”; iii) In relation to the approach taken in Malik v Malik, Ms Gleyze submits that Mrs Wallis has been prejudiced by the Appellant taking inconsistent positions because Mrs Wallis negotiated a settlement with TF on the assumption that the Appellant was jointly liable and engaged in correspondence with the trustee in bankruptcy on that basis; iv) Ms Gleyze also says that court orders have been made on the basis of the Appellant’s admissions and the court should not now make an order based on the Appellant taking a contrary position.[56]I am not persuaded that Mrs Wallis has a real prospect of success in relation to these points: i) The point based on Phipson is a new point which was not argued at the hearing. What Phipson says is that “The inclusion or omission of a debt in a bankrupt’s statement is evidence of the existence or non-existence of the debt as against himself...” That is uncontroversial but does not assist Mrs Wallis unless the evidence must be regarded as conclusive for all purposes. On that issue, there is a footnote in Phipson which reads as follows:
“Hart v Newman (1811) 3 Camp. 13;Nicholls v Downes (1830) 1 M. & R. 13; 174 E.R. 5, The date of the report shown in Phipson’s footnote is “(1839)” but this appears to be an error – the case was actually decided in 1830. where such an omission was held conclusive.”
As I understand the reports of those cases, a bankrupt was permitted to contradict a statement made on oath when he petitioned for bankruptcy in the first case, but not in the second (despite the first one being referred to). These are thinly reasoned decisions, turning on their own facts, which do not seem to me to lay down an immutable principle of law, and certainly not one which must be applied to different circumstances existing two hundred years later. ii) Mrs Wallis did not rely on CPR 14.2(2) at the hearing either. It is not obvious that this provision can be applied to an appeal by analogy. Nor can I see how any of the three statements relied on by Mrs Wallis could amount to admissions within the meaning of the provision. They were not made in the form of notices in writing given to Mrs Wallis. Moreover, the Appellant sought permission to appeal just a few days before she applied for her bankruptcy, so it is difficult to see how any reasonable person in Mrs Wallis’s position could have understood the bankruptcy petition as an admission that there was no valid appeal. In any event, the maker of an admission can apply to withdraw it under CPR 14.1(2)(b). I do not, therefore, consider that Mrs Wallis has any real prospect of successfully appealing my Judgment on this basis. iii) Ms Gleyze’s third and fourth points about detriment and inconsistency seem to me to be no more than a re-run of the arguments she made to me at the hearing. I considered them and rejected them for the reasons given in the Judgment and their reformulation in Ms Gleyze’s written submissions does not persuade me that Mrs Wallis has any real prospect of succeeding on appeal.[57]For these reasons, I consider that Mrs Wallis has no real prospect of success in relation to an appeal of my decisions about standing or abuse of process. There is no other compelling reason for an appeal to be heard (and Ms Gleyze has not suggested any). Mrs Wallis’s application for permission to appeal is, therefore, refused. She can, of course, still ask for permission from the Court of Appeal.

Conclusion

[58]I have now addressed all the points of contention in relation to the Draft Order. I would be grateful if the parties could now submit an agreed final version of the order for sealing.