Matthew John Fisher & Ors v William Edward Fisher [2026] EWHC 1508 (Ch)

[2026] EWHC 1508 (Ch)

Case No PT-2020-000436

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

PROPERTY, TRUSTS AND PROBATE LIST

Venue The Rolls Building, 7 Rolls Buildings, Fetter Lane

London

EC4A 1NL

Date 27 April 2026

Before

CHIEF MASTER SHUMAN

Between

(1) MATTHEW JOHN FISHERClaimants

(2) MELANIE-JAYNE EASTONClaimant

(3) LORRAINE LOUISE BESTClaimant

(4) JULIA LAWSClaimant

WILLIAM EDWARD FISHERDefendant

MR PAUL EMMERSON (instructed by Dutton Gregory LLP) for Claimants

The Defendant appeared in Person for in person

Approved Judgment

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[1]Myrtle Joyce Fisher died on 13 September 2017. By her Will dated 16 May 2013 she appointed the defendant, who is her son, and her grandson Edward as her executors and trustees. The Will provides that her residuary estate was to be held on trust for her family members, 20 per cent to the defendant, 20 per cent to her daughter Wendy, 20 per cent to the daughter Julia, 20 per cent to her daughter Caroline and the remaining 20 per cent to be divided between her granddaughter Melanie, grandson Matthew and granddaughter Lorraine.

[2]A Grant of Probate was made to the defendant on 19 October 2018.

[3]The deceased died over eight years ago but her estate is yet to be finally administered. On 10 June 2020 the Part 8 claim form was issued seeking to remove the defendant as executor and appoint an independent administrator. In the details of the claim on that claim form it was stated that the defendant had failed to supply the claimants with proper and complete information about the estate, that he had acted in his own interests which put him in conflict with his duties as executor and that he had not been impartial in the way that he dealt with the beneficiaries. Documentation was also sought, as one would expect, to enable the new administrator to complete the administration.

[4]The persons who are claimants in this claim now, as I added a fourth one at an earlier hearing, are Matthew Fisher, Melanie Easton, Lorraine Best and Julia Laws. The defendant is William Fisher.

[5]On 16 October 2020 Deputy Master Nurse made an order, some of which was by consent, removing the defendant as executor and trustee under the Will and appointing Coffin Mew Trust Corporation Limited as administrator. He also gave permission to the administrator to apply for directions in the administration of the estate and it is under that provision the administrator sought directions from the court.

[6]The claim came before me on 14 October 2025. The administrator had taken a neutral position on the remaining issues to be determined in the estate, served no evidence directly about those issues but did file an updating witness statement about the estate accounts and at the hearing on 14 October 2025 they were joined as an intervenor. At that hearing the beneficiaries were directed that if they wished to be joined as parties they should issue an application by 4 pm on 11 November 2025.

[7]Prior to that hearing Mrs Julia Laws, who is now the fourth claimant, in an email to the court expressed her wish to be joined in the proceedings adopting the same stance as the first to third claimants. Mrs Wendy Hubbard had stated in an email dated 8 October 2025 to the court that:

“I assume the court would wish to have all other beneficiaries’ views on issues to enable them to get as clear a picture as possible. I have prepared statement if such is needed by court but assume I and others must wait to be invited to provide such. Do not wish to incur costs by other solicitors’ approach.”

[8]So that, as I have indicated, led to the direction specifically that Mrs Wendy Hubbard but also any other beneficiary under the estate may issue an application to be joined to proceedings, they were to do that by 11 November 2025. No applications have been made.

[9]The order itself identified four factual issues, that remain to be determined which should then enable this estate to be finally administered. The order also provided for the filing of witness statements and documents.

[10]Paragraph 5 set out the timetabling for that evidence and disclosure and at paragraphs 6 and 7 the order provided this. “6. If any party fails to comply with paragraph 5 above then that party will not be permitted to rely on any witness statement or documentary evidence at trial other than such evidence as has already been filed and served. 7. The parties have permission to cross-examine any person who has given a witness statement in accordance with paragraph 5 above at trial but only if the cross-examining party has him or herself complied with paragraph 5.”

[11]The issues that the order identified were:(a) whether the cost of works carried out at Meadow Cottage were properly incurred on behalf of the estate;

(b) whether the defendant occupied Meadow Cottage and, if so, on what financial basis he must account;

(d) whether expenses claimed by the defendant should be borne by the estate, and there is some overlap in relation to that issue with issue (a).

[12]This was listed for trial on 16 March 2026. At the trial Mr Emmerson of counsel represented the claimants and the defendant acted in person. The administrator, who has remained neutral, did not participate at the trial.

[13]As a preliminary matter I heard an application by the claimants for orders that the defendant’s evidence, which had not been filed and served in accordance with the order, were to be struck out, he should not be granted relief from sanctions and he should not be permitted to cross-examine the claimants. No paper application for relief had been made by the defendant.

[14]Plainly the defendant had failed to comply with paragraph 5 of the order so that the sanctions in paragraphs 6 and 7 took effect. As a preliminary matter I determined that the defendant was not permitted to rely on recent witness statements or to cross-examine the claimants’ witnesses. The trial therefore proceeded on the basis of the claimants’ documentary evidence, contemporaneous documentary material and such admissions as appear in correspondence or in undisputed documents. I also determined that on a construction of paragraph 6 of the directions order the parties could rely on evidence that had been previously filed and served subject to relevance. However, the previous dispute had squarely focussed on the removal of the defendant as executor, they have not directly engaged with the full factual issues as had been set out in the directions order.

[15]At the outset it is important to say something about the role of an executor or administrator. Under section 25 of the Administration of Estates Act 1925 the personal representative is under a duty to collect and get in the real and personal estate of the deceased and administer it according to the law. For an executor that duty arises immediately upon death, even before a Grant of Probate is obtained. This duty to administer according to the law encompasses obligations of due diligence, preservation of estate assets and financial prudence. A personal representative must act in the best interests of the estate as a whole and of those beneficially entitled. They must not expose estate assets to unnecessary risk or speculative expenditure. These duties are fiduciary in character so a representative must avoid conflicts of interest, they must not place themselves in a position where their personal interests conflict with the interests of the estate and they must not obtain an unauthorised benefit from the administration. Where conflicts arise the law requires scrupulous transparency and objective justification. Issue (a), the Meadow Cottage works.

[16]Meadow Cottage was the deceased’s former home and at all material times the principal asset of the estate. In 2019 substantial works were undertaken to the property at a total cost of £49,990.90. Those works were carried out by Hall Farm Limited, a family company of which the defendant is a director and shareholder. The works included general upgrading and improvement rather than urgent repair.

[17]The evidence before the court establishes that the defendant authorised those works without obtaining any independent quotations, without circulating a detailed scope of the works or projected cost to all beneficiaries and without ensuring that the estate was in a financial position to meet the expenditure. At the time that the works were commissioned the estate was cash poor and was struggling even to meet inheritance tax liabilities as they fell due.

[18]On 27 May 2019 the defendant wrote to the beneficiaries in the following terms. “Any part of the expense incurred by me in trying to maximise the potential worth of the estate and maintain the property will be waived for any inheritor who disagrees with said costs.” It strikes me that statement is important. It demonstrates that at least at that stage the defendant himself contemplated the possibility of objection by beneficiaries and accepted that in such circumstances the cost might fall on him personally rather than on the estate. This litigation has proved that that assurance was not honoured.

[19]At the time that the works were authorised and carried out the defendant was in occupation of Meadow Cottage and was also exploring the possibility of purchasing the property himself. He therefore stood on both sides of the transaction as executor authorising significant expenditure of estate funds and as director of the company carrying out the works and as a would-be purchaser who would benefit from the works. That is a classic conflict of interest. The law does not prohibit every conflict decision by an executor but, as I have already indicated, the law does require scrupulous care, transparency and objective justification; none were present here.

[20]At the start of the defendant’s submissions he asserted that he had never wanted to buy Meadow Cottage although counsel for the claimant referred me to a witness statement which records that he did make an offer to buy. The defendant relied heavily in his submissions on correspondence on informal suggestions of majority support by some beneficiaries for improving the property with a view to future letting or development. Even if such informal support existed it could not justify the unilateral commitment of almost £50,000 of estate funds without proper disclosure, independent valuation or informed consent of all interested parties particularly where the executor himself stood to benefit from the works.

[21]Contemporaneous estate agent evidence is significant. In June 2019, prior to the works, the property was valued in the region of £775,000 to £800,000. Byrne Runciman marketed the property for sale for £850,000 although it is fair to say they had difficulties obtaining an offer. In email correspondence they suggested that the amount of updating required might have been putting buyers off although I note an offer had been made of £835,000, although that offer did not come to fruition. The property was removed from the market.

[22]In March 2020 the property was placed on the market again for sale at £850,000. The defendant argues that the works had enhanced the ultimate sale price. There is no evidence that the works produced any immediate increase in value so I am left to conclude that the eventual sale price achieved in 2021 of £972,000 reflected subsequent market conditions rather than the earlier works. Of course, the defendant could have adduced evidence if he had complied with the directions order made by the court, if such evidence were available to support his contentions at the trial, but he failed to comply with the order.

[23]In the course of the defendant’s submissions he accepted that he would cover the costs of an additional sales fee of £960 to Byrne Runciman and that that should not be a cost incurred by the estate.

[24]An executor owes fiduciary duties to act in the best interests of the estate, to avoid conflicts of interest and to ensure that any expenditure of estate funds is reasonable, necessary and properly authorised. In the present case the defendant failed to observe those duties. The works are speculative rather than necessary, were undertaken in circumstances of conflict and were authorised without proper process or financial prudence.

[25]In a case where there is a dispute between adult beneficiaries a simple solution is for an executor to bring an application to court for the court to authorise the executor doing as he wishes to; that did not occur in this case.

[26]So applying fiduciary duties and the principles that arise from them, expenditure of estate funds must be shown to have been reasonably and properly incurred for the benefit of the estate. Works undertaken for improvement rather than preservation require particular careful justification, especially when the estate is cash poor and liabilities, including inheritance tax, remain outstanding. A representative who authorises substantial expenditure without ensuring the estate’s solvency acts at their own risk no matter how well intentioned the personal representative believes their actions are.

[27]Where a personal representative causes the estate to contract with a company in which they have a personal interest the transaction is inherently conflicted. The law does not require proof of dishonesty and it is not suggested in this case that there has been any, I want to make that clear, it is sufficient that the representative placed themselves in a position where personal interest and duty conflicted without proper authorisation or fully informed consent. In such circumstances the burden falls on the defendant to justify the transaction. Further, the duty to preserve estate assets includes the duty to avoid speculative expenditure. Improvements intended to maximise potential value cannot be justified retrospectively by hoped for future gains particularly where, on the limited contemporaneous evidence before the court, there does not appear to have been any uplift in the value at the material time.

[28]For those reasons the defendant’s authorisation of the Meadow Cottage works constituted a breach of duty in the administration. The costs were not properly incurred on behalf of the estate and are not recoverable from it. I therefore conclude that the estate is under no obligation to meet those costs and liability rests with the defendant personally. Issue (b) Meadow Cottage occupation.

[29]Where a personal representative occupies estate property the law treats that occupation as giving rise to an obligation to account independently of an allegation of wrongdoing. The principle is one of compensation, the estate is entitled to be put in the position it would have been in had the property been dealt with in accordance with the representative’s duties. The obligation arises from the representative’s duty to preserve the estate and to administer it without conferring an unauthorised benefit on himself. Long term occupation of the estate’s principal asset coupled with delay in sale plainly engages that duty.

[30]In assessing occupational rent the court is not bound to adopt the highest possible market figure but must do the best it can on the evidence adopting a conservative and fair approach. The defendant’s own estimates of market rent are properly taken into account as admissions. It is common ground, and indeed admitted by the defendant in correspondence in February 2026, that he occupied Meadow Cottage for a period of 43 months. He proposes to pay to the estate the sum of £4,300 equating to a sum of approximately £100 per month. In the course of the defendant’s submissions he said that he had merely occupied one room as an office; whilst his mother was alive he had used this room and he had paid her £100 per month. His view was that this is the correct amount for him to pay when he simply continued to occupy the room as he had done before, for a further 43 months after her death.

[31]The defendant’s own correspondence elsewhere places market rent at between £2,000 and £2,400 per month. Independent evidence, which I loosely describe as independent evidence, suggests an even higher rental value of around £2,900 per month. Against that background the figure of £100 per month cannot be regarded as a genuine attempt to reflect market value or to provide equitable accounting. It also demonstrates a failure by the defendant to understand his duties as executor. The defendant treated the property as his own whether he used one room or the entire property; indeed, he even referred to permitting a wedding and barbecue to take place in the cottage and grounds.

[32]In submissions the defendant commented that the garage was full of belongings and the house would have to be rented out without a garage. There are two responses to that: the belongings should have been cleared out and the property rented out or sold. When the deceased died the defendant’s arrangements with her ended. At that point, and given that the defendant was the executor under her Will, he should have vacated the property or started paying occupational rent. For 43 months the estate was deprived both of rental income and of the opportunity to sell the property promptly and reduce the estate’s liabilities. The obligation on a personal representative who occupies estate property is to account to the estate for their occupation. The obligation is compensatory rather than punitive and is designed to prevent unjust enrichment at the estate’s expense. No party has sought permission and obtained expert evidence about the rental value of the property.

[33]I am also acutely conscious that this case needs to be brought to an end. The estate of the deceased needs to be finally administered. The parties do not ask for a direction for expert evidence. I am therefore left to do the best that I can on the evidence that is before the court.

[34]There is a document in the trial bundle, a Zoopla rental price estimate. This suggests that the rental price of the property was £2,900 per calendar month, the range being £2,550 to £3,300 per month. In a schedule of payments which appears to have been prepared as a running executor’s account the defendant says:

“Please note that if the proposed letting of the property had been agreed by Dutton Gregory’s clients £2,300 per month could have been saved from this running total, possibly 25 months at £2,300 so £57,500.”

This is a document that appears in a schedule to a witness statement that I have not permitted the defendant to rely on but it is evidence that the court can take into account.

[35]To the credit of the claimants they have asked that the court take a conservative approach to the rental amount to be paid. In submissions they propose a figure of £1,500 per month. During the course of the defendant’s submissions he accepted the figures in the Zoopla rental price estimate but reiterated they related to the whole property not his use of one room. I am prepared to assess a reasonable market rent at £1,500 per month. Over a period of 43 months this produces a figure of £64,500. I therefore find that the defendant is liable to account to the estate in the sum of £64,500 in respect of his occupation of Meadow Cottage together with interest. Of course, when the estate account is recalibrated he is entitled to 20 per cent of the residual estate. Issue (c) bank accounts.

[36]This issue has troubled me. The claimants’ case is that an order should be made for the defendant to pay to the estate £4,800 representing suspicious cash withdrawals made before the deceased died, on the date of the death or shortly thereafter, and £5,184.49 being moneys paid from the deceased’s Nationwide account to Church’s client account. It is said this did not relate to the Probate and/or the costs of correcting errors made by the defendant.

[37]The history of correspondence shows long running suspicion and grievance in relation to these withdrawals. Although a personal representative is under a duty when required to account fully for the administration of the estate, the court’s jurisdiction is not inquisitorial. An allegation that withdrawals were improper must be anchored to a recognised legal basis. If the claimants wish to allege a devastavit against the defendant for the latter sum and a claim for conversion or misappropriation of assets or some other cause of action against the defendant for sums paid during the deceased’s lifetime that must be properly pleaded. The defendant has a right to know and understand the legal case that is being advanced against him. This position is amply demonstrated when in submissions the defendant stated that a number of people had access to the deceased’s bank cards and that she had been careless with money.

[38]I also want to say at this point that I am not encouraging any party to engage in further litigation in relation to this estate, there needs to be a line drawn under this matter. The sums in question raised by the claimants are relatively modest and would be out of proportion to the costs of launching yet more litigation. I am not sure if this family will ever heal from the rift but they certainly will not start to heal if further litigation is pursued.

[39]The court is required to determine claims on the basis of the legal case advanced before it. Where no clear legal foundation for liability has been articulated the claim cannot succeed and must fail at a threshold level without the need for the court to reach conclusions as to the propriety or otherwise of the underlying transactions. The dismissal of this issue therefore turns on the way in which the case has been formulated rather than on any positive finding as to the defendant’s conduct. I also observe that it is not the role of the court to supply or reformulate the cause of action that have not been pleaded or properly developed nor is it appropriate for the court to select after the event between possible legal bases that were not advanced. Whilst concerns or unease may be genuinely held by the claimants they do not of themselves amount to a legally recognisable claim.

[40]In those circumstances, and without making any determination one way or the other as to the propriety of these said transactions, I conclude that the bank accounts claim cannot succeed and must be dismissed. Issue (d) William’s expenses, William being the defendant.

[41]The personal representative is entitled to reimbursement only of expenses properly and reasonably incurred for the benefit of the estate. The burden of proof lies on the representative to demonstrate both propriety and reasonableness. Expenses arising from personal occupation or unilateral decisions taken without proper authorisation do not fall within that entitlement. In the absence of admissible evidence explaining and justifying the expenditure the court is not entitled to assume that the expenses were incurred for estate purposes and that they were reasonable.

[42]Where doubt exists the risk lies with the personal representative not the beneficiaries. That reflects the fiduciary nature of the office and the strict approach taken by the court to the administration of estates.

[43]The defendant claims reimbursement from the estate for a wide range of expenses including utilities, insurance, maintenance and professional costs. The sums claimed are substantial. The defendant has adduced no admissible witness evidence to justify all of the expenses, to explain their purpose or to demonstrate that they were properly and reasonably incurred on behalf of the estate rather than arising from his own occupation of Meadow Cottage or unilateral decisions taken while acting as executor. Many of the claimed expenses are on their face attributable to occupation of the property including utilities and Council tax; others arise from decisions taken by the defendant without proper consultation or authorisation. Correspondence from Knights queried the propriety of a number of these expenses, reinforcing the absence of clear justification.

[44]So to reiterate, the legal position is straightforward: an executor is entitled to reimbursement only of expenses properly and reasonably incurred for the benefit of the estate, in the absence of proper evidence that entitlement is not made out. In a schedule to the draft order the claimant sets out all the expenses that they suggest the defendant claims and to which he should not be entitled and I will now turn to the schedule to the draft order entitled Schedule of Expenditure.

[45]The first item is the cost of works, £49,990.90, to the deceased’s former property at Meadow Cottage. I have already dealt with the works to Meadow Cottage under issue (a) and I have determined that this is not a liability of the estate and that the defendant cannot recover that sum from the estate.

[46]I will then group together funeral, food and refreshments. The defendant submits that he wrote out a cheque for the caterers. That was wrong, so he paid in cash. Clearly, a funeral took place for the deceased. From the evidence that I have seen she was a loved mother and grandmother.

[47]If the defendant paid this sum he should be reimbursed it. It should be straightforward for him to have obtained evidence from the caterers providing a copy of the invoice and to confirm that they received the payment in cash direct from the defendant, so it seems to me it is right to give the defendant a short further opportunity to put in evidence. I therefore direct that he has 21 days from today to send to the administrator, copied to the claimants’ solicitors, the invoice and confirmation of payment and from whom. If the defendant fails to do so or if the administrator does not accept this evidence then the amount is not recoverable from the estate.

[48]Charitable donations on behalf of the family and South Coast Memorials. In the defendant’s submissions he accepted that if the claimants do not wish to pay for the memorials to the deceased or for charity donations then the other beneficiaries will reimburse him. I can understand the sadness that this disagreement causes to the defendant and those members of the family that support him, but it is a proper concession that he has made because the beneficiaries did not authorise these payments. I infer from the defendant’s submission that these are amounts that can be removed as estate expenses.

[49]Gardener for hedge. In theory a personal representative should be able to recover the cost of paying for hedge maintenance providing that it was necessary for the upkeep, safety or sale of the property. However, the defendant has produced no evidence to support this and this expense is not allowed.

[50]Meadow Cottage planning advice and plans. The defendant was advised by the local authority that planning would not be granted. Notwithstanding this advice the defendant proceeded to incur costs. This expense is not allowed.

[51]Car tax and petrol. The defendant has not explained why this was incurred, why the deceased’s car was not promptly sold upon her death. This expense is not allowed. If the defendant received money from the sale of any car that is an amount to be credited to the estate.

[52]Mower drive belts. In theory again this might have been recoverable but there is no evidence before the court and the expense is not allowed.

[53]Byrne Runciman sales fee of £960. The defendant has quite fairly accepted in his submissions that he is responsible for this fee.

[54]Hanging basket and weed killer. There is no evidence and no explanation as to why this was a necessary expense for the estate. It is not allowed.

[55]Petrol for mowers. Again, this is in principle an expense that might have been permitted but there is no evidence before the court and it is not allowed.

[56]There is then a raft of amounts relating to utility payments. Water bills for Southern Water, Co-operative Energy, British Gas and Fuel Southern Electric. During the occupation of Meadow Cottage by the defendant he is responsible for these bills not the estate. Any charges after he vacated the property are an estate expense.

[57]Phoenix Pension and DWP pension repayment. It is entirely possible for a pension to have been paid to the deceased which included the period after her death; that would have been recouped from the estate. If the estate accounts show that these overpaid sums are in the estate and if the defendant paid these sums back he should be reimbursed. It should be straightforward for him to produce evidence, both pension providers would have written to him as executor of the estate reclaiming this money. There should be evidence from his bank records which will show the amount paid and date. So I will give the defendant a further 21 days to send to the administrator evidence to support this. If the defendant fails to do so or if the administrator does not accept this evidence the amounts are not recoverable from the estate.

[58]Council tax. During the occupation of Meadow Cottage by the defendant he is responsible for these bills not the estate. Any charges after he vacated the property are an estate expense.

[59]There is also a separate heading for Portsmouth Water. During the occupation of Meadow Cottage by the defendant he is responsible for these bills not the estate. Any charges after he vacated the property are an estate expense. But let me be clear in relation to the utilities in relation to this matter: any utilities incurred by the deceased up to the date of her death are an estate expense.

[60]There then follows two separate amounts: Church’s litigation costs £10,796. The defendant’s emphatic position is that he has paid his own litigation costs. It therefore follows that this sum should not be included in the estate expenses and should be removed. There is then a further sum described as Church’s administration costs outstanding £6,000. It is not clear to me if this is a sum already claimed or separate to the amount already paid to Church’s. Save for the documents in the bundle there is no breakdown from Church’s that helps explain this amount. The administrator should liaise with Church’s to ascertain what this relates to, that should be straightforward. If it is a proper probate expense attributable to the estate then it is permissible for the estate to have this included; if the administrator is not satisfied by the evidence it should be removed from the estate account as a liability.

[61]So for the reasons that I have given: in relation to issue(a) the defendant is personally liable for the costs of the Meadow Cottage works; in relation to

(b) the defendant must account to the estate for occupation, rent assessed in the sum of £64,500 plus interest, that is in connection with his occupation of the cottage; in relation to

(d) I have just set out the expenses claims that are allowed, not allowed, and given the defendant an opportunity, a last opportunity, to put in further evidence in relation to some of those expenses.

[62]This case illustrates the importance of strict adherence to the duties imposed on personal representatives by the law of estates and administration. Those duties exist to protect estates from exactly the type of informality, conflict and delay which have characterised the present dispute.

[63]That is my judgment in relation to this matter. (For continuation of proceedings see separate transcript)

CHIEF MASTER SHUMAN:

[64]So in relation to the question of costs the court has a discretion as to costs. That is encapsulated in Civil Procedure Rules Part 44 rule 2, which provides that the court has a discretion as to whether costs are payable by one party to another, the amount of those costs and when they are to be paid. In this case the claimants are seeking an order that the defendant pay the costs of the trial on 16 March 2026, the directions hearing on 14 October 2025 and the costs of today when judgment was delivered. What they are not seeking, nor should they, are any costs in relation to the previous aspect of the proceedings that have already been determined by Deputy Master Nurse. The claimants also seek costs on an indemnity basis.

[65]Mr Fisher, the defendant, has submitted that he stood down as executor and he passed over the reins to the new administrator and that, really, apart from providing details to the new administrator, his role was completed save insofar as he might need to assist them. He has said very forcibly, and this has been his feeling at the trial, that he did not invite the claimants’ solicitors to attack him but that is certainly how he feels and that he feels that he was pushed into this situation and considers that the claimants’ solicitors have been unreasonable.

[66]In relation to the discretion as to costs, if the court decides to make an order about costs the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party but that the court may make a different order and CPR Part 44.2(4) sets out a non-exhaustive list of matters that the court will consider and it says:

“In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including – (a) the conduct of all the parties; (b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and (c) any admissible offer to settle...”

[67]Sub-paragraph (5) specifically deals with the conduct of the parties. That can include conduct before as well as during the proceedings, it can include matters where the parties follow any pre-action conduct. It also considers whether it is reasonable for a party to raise, pursue or contest a particular allegation or issue and the manner in which that party has pursued or defended its case. And the orders that are open to the court are wide. They could include a proportion of another party’s costs, they could include a stated amount, they could include costs from or until a certain date.

[68]Regrettably in this case this aspect of the litigation resulted from the refusal of the defendant to engage in the proper court process. As was indicated at an earlier hearing, the defendant accepted that emails in relation to this litigation went into a spam file, he chose not to read them, he chose not to respond. I am satisfied that the claimants’ solicitors have conducted themselves properly in this matter. They have tried to engage with the defendant to try and mediate out a settlement in this case. The defendant has refused to enter into any form of alternative dispute resolution.

[69]I am told that after the hearing on 14 October 2025 the claimants’ solicitors again invited the defendant to mediate and to set out what his case was on the issues and that he refused to do so. In an email dated 23 October 2025 there was an open offer made to the defendant. That provided in relation to issue (a) that the company should withdraw its claim against the estate for the sum of £49,990.90. The claimant was successful in relation to that. They offered to accept £20,000 by way of occupation rent for Meadow Cottage occupation. That was decided today would be in the sum of £64,500 plus interest.

[70]They also sought £10,000 back in respect of the bank accounts, that was not allowed. And in relation to the expenses they sought elements to be removed and set the overall expenses at £54,730 and then made proposals in relation to the non-essential elements and also in relation to other expenses. That is an offer that the court should take into account, it is relevant for the purpose of these proceedings.

[71]I am also told by Mr Emmerson on behalf of the claimant that a Part 36 offer was made. I have not seen that offer and Mr Emmerson accepts himself that, whatever the contents of that offer, he is not suggesting that a strict application of the Part 36 consequences could or should follow.

[72]This is at heart a deeply sad and regrettable case concerning the death of a loved mother and grandmother Myrtle Joyce Fisher and the consequent fall out between family members and extended family members. I do not doubt that Mr Fisher believed that he was acting in the best interests of the estate but Mr Fisher, as I have found, did not deal with his duties as a personal representative as he should have done. He fell into conflict in a number of respects and is the author of his misfortune in respect of this case. The role of a personal representative is not one to ever be taken lightly by anybody, not by a family member or otherwise. Where you do not have the full agreement of all adult beneficiaries you can end up in court, which very sadly has happened in this case.

[73]So, sad as the background to this case is, it seems to me that it is entirely appropriate for the court to make an order notwithstanding the fact that the claimants did not succeed on issue (c) and bearing in mind that this really was set as a hare running because of allegations made by the defendant about moneys taken from bank accounts. The correct order to make in this case is an order that the defendant pay the claimants’ costs.

[74]Also this is a case that is outside of the norm of normal litigation, it has not been conducted in the way it should have been. Parties have an obligation to engage with the process of litigation, they should be trying to settle the case outside of court, they should be using non-court based dispute resolution wherever possible. I suspect that Mr Fisher, aggrieved by what he considers he has done for the benefit of his late mother’s estate, has thought that he was acting in the best interests of the estate and has felt aggrieved with the way that he believes he has been dealt with by the claimants. That is no basis, unfortunately, for conducting this litigation in the manner that he has and so I will therefore order costs to be paid by the defendant on an indemnity basis. (For continuation of proceedings see separate transcript)

[75]This is an application for payment on account of costs which I have just ordered the defendant to pay the claimants and to pay on an indemnity basis. Mr Emmerson has set out the global costs claimed in relation to the directions hearing on 14 October of £19,821, an application on 16 March which cost £6,853 and the trial which cost £41,939, plus the judgment hearing today of £6,922. That totals a figure of £75,535. In addition he initially sought a payment on account in relation to a sum of some £80,000 which he said has been incurred after the defendant was removed as executor. I have no information before me in relation to the £80,000.

[76]When taken together that seems to me to be an extraordinary amount of costs in relation to a relatively modest estate where the principal asset is Meadow Cottage. Even if it is sold for just a shade under £1 million that seems to me to be high costs. The trial in relation to this matter was only listed for one day, the application in terms of debarring the defendant was relatively straightforward and, indeed, the judgment today has been about an hour and a half of hearing and submissions in relation to costs. I have already indicated to Mr Emmerson I have no evidence and I am not prepared to consider the sum of £80,000 without evidence before me as part of the payment on account of costs, so that leaves the sum of £75,535. Mr Emmerson submits that this on an indemnity basis should be £60,000, Mr Fisher says that he would be prepared to pay £37,500, in crude terms, within 28 days.

[77]I have no information before me in terms of Mr Fisher’s personal circumstances. Looking at the amount claimed I consider even on an indemnity basis that the sums claimed in relation to those four aspects seems high. I am not satisfied at first glance whether those are reasonable and proportionate to the issues that were before the court so I am not prepared to make a payment on account of costs in the sum of £60,000. However, I will order the sum of £50,000 to be paid on account of costs and direct that it be paid within 28 days. It is in your interest, Mr Fisher, to make that payment in 28 days because the sooner you make it the sooner interest on the costs stops being incurred in relation to that sum. - - - - - - - - - - - - - - - - - Digital Transcription by Marten Walsh Cherer Ltd 2nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP Telephone No: 020 7067 2900 DX: 410 LDE Email: info@martenwalshcherer.com Web: www.martenwalshcherer.com