Court of Appeal decision in Brealey v Shepherd & Co

Andrew Williams from Exchange Chambers has succeeded in the Court of Appeal in Brealey v Shepherd & Co [2024] EWCA Civ 303, a decision likely to become a leading case on the subject of the remuneration of trustees and executors.

This case involved an estate mainly comprising a high value house.  Shepherd & Co Solicitors claimed £153,000 for the services provided by Mr Shepherd, a solicitor-executor.

Andrew Williams acted for one of the main beneficiaries, Mr Brealey, who issued an application for a Third Party Detailed Assessment of the costs (under s. 71(3) of the Solicitors Act 1974).  Mr Brealey denied that the estate was liable to pay the costs incurred by Mr Shepherd in his role as executor.  His reason was that the deceased’s will did not contain a clause entitling the executors to charge for their services. Andrew Williams, said:

“The decision turned on two matters. The first was whether Mr Shepherd’s firm could demonstrate that there was an agreement under section 29(2) of the Trustee Act 2000 entitling him to charge.  That in turn depended on whether that sub-section required that the agreement be signed by Mr Shepherd’s fellow executor who did not take out a grant and who took no steps in the administration.

The second issue was whether the court should exercise its inherent jurisdiction (sometimes called the jurisdiction under Boardman v Phipps), to authorise Mr Shepherd to be remunerated. That involved identifying when the jurisdiction should be exercised, given the possible inconsistencies among the authorities.”

The Court of Appeal found in favour of Andrew Williams’ client, Mr Brealey, on all matters.  As for the first issue, it held that the written consent of the non-intermeddling executor was required under s. 29(2).  Regarding the second issue, the Court clarified when the jurisdiction should be exercised and it refused to exercise it so as to award remuneration.

The first instance decision in this case has already been extensively cited in textbooks.  The Court of Appeal decision now looks likely to become a leading case on the subject.

Andrew Williams was instructed by Will Jones of Jones & Co Solicitors and led John Meehan from Kenworthy’s Chambers.

The hearing can be viewed here:

https://www.youtube.com/watch?v=ni16-TL7xEs&t=403s

https://www.youtube.com/watch?v=mYhlLd53plc

Read more stories

Join nearly 5,000 other practitioners – sign up to our free newsletter

You’ll receive the latest updates, analysis, and best practice straight to your inbox.

Features