BH vs JH

This case concerned an application for costs made by the Official Solicitor acting as litigation friend for P, following a dispute over the procedural requirements for notifying beneficiaries under a statutory will.

TLDR:

• The Official Solicitor applied for costs after a dispute over procedural notifications for a statutory will.
• The court had to determine if beneficiaries, including carers and unidentified charities, needed to be notified.
• The court ruled in favor of the Official Solicitor, emphasizing the importance of procedural fairness.
• The deputy was ordered to pay P's costs and bear his own costs from a specific date.

The case involved BH, the appellant, and JH, the respondent, acting by his litigation friend, the Official Solicitor. The dispute arose over a variation to a statutory will made in 2008 on behalf of P, who is also JH. The variation was proposed by P's deputy, who is also his brother. By the time of the hearing, there was no dispute over the substantive changes to the statutory will; the issue was purely procedural.

The procedural dispute centered on whether beneficiaries, specifically carers and unidentified charities, needed to be notified under paragraph 9 of Practice Direction (PD) 9E. The Official Solicitor argued that notification was necessary, while the deputy disputed this requirement.

Deputy District Judge Weereratne accepted the Official Solicitor's arguments, ruling that notification to the carers and the Attorney-General regarding the charitable bequests was necessary for fairness. However, the court agreed to dispense with notification to the carers due to compelling reasons, which were detailed in an earlier judgment.

The Official Solicitor then applied for costs, inviting the court to depart from the usual order under CPR rule 19.2 and exercise powers under rule 19.5. Written submissions were filed by both parties, and the application was determined on the papers due to judicial continuity concerns.

The Official Solicitor's application sought either that the deputy should pay P's costs incurred by the Official Solicitor for determining the service issue, including the hearing, or that there should be no order as to costs, meaning the deputy would bear his own costs and not recover them from JH's estate. The Official Solicitor's costs on behalf of JH would be recoverable from the estate as usual.

The deputy refuted the Official Solicitor's points, arguing against departing from the usual rule and suggesting that there should be no order as to costs. The court considered the general rule under Court of Protection Rules 2017 (COPR) 19.2, which states that costs in proceedings concerning P's property and affairs should be paid by P or charged to P's estate. However, the court has discretion to depart from this rule if justified by circumstances, as outlined in rule 19.5.

The court found that the deputy had fundamentally misunderstood the purpose of the service rules under PD9E, leading to unnecessary contested hearings and protracted correspondence. The court determined that the deputy's conduct justified a departure from the general rule as to costs. The deputy was ordered to pay P's costs incurred by the Official Solicitor from 4 July 2023, including the hearing, and to bear his own costs from the same date.

Legal representatives: Ms. Elissa Dacosta-Waldman, Counsel, instructed by New Court Chambers for the Appellant; Ms. Georgia Bedworth, Counsel, instructed by Tenold Square for the Respondent.

Judicial Panel: Deputy District Judge Weereratne

Case Citation Reference: [2024] EWCOP 9