Does the winner take it all?
2022 and 2023 has been, and this seems set to continue, very active when it comes to probate claims. Time and time again, cases are front and centre in the public arena, helped along by the supporting headlines in the Daily Mail. This has also been helped by the recent Channel 5 series called “The Inheritance”.
What has been interesting has been the number of appeals that seem to have taken place, and overturned decisions made at first instance. To name a few good examples over the last year:
- Hudson v Hathway [2022] EWCA Civ 1648
- Hughes v Prichard [2023] EWHC 1382 (Ch)
- Guest v Guest [2023] UKSC 27
- McLean v McLean [2023] EWHC 1863 (Ch)
- Priel v Glatt [2023] 7 WLUK 285
- Rea v Rea [2023] EWHC 1901 (Ch)
Some of the cases are high-profile and have changed the legal landscape. Let’s look at Hudson v Hathway, where (for the first time – even though it wasn’t pleaded by the parties) the appeal court held that the emails exchanged by the parties amounted to a disposition and satisfied the definition of a signature to transfer the beneficial ownership of the property for the purposes of Section 53(1) of the Law of Property Act 1925.
At some point, every litigator will encounter a misapplication of the law or the facts, or a misunderstanding by a judge on their case. This leaves us, as litigators, and those advising our clients, in a bit of a pickle if the decision at first instance is made incorrectly. If you cannot convince your opposition of the error, which strategically is very difficult to tackle as they will have just won the case, there are limited options (aside from raising a challenge against a judge if it can be shown there is bias or that the judge has acted improperly, such as in their personal conduct) which usually means progressing with an appeal.
If this is necessary, the risk falls very firmly on our clients as the parties to the appeal. This can be an expensive exercise as it will normally involve instructing counsel, which is not a cheap exercise, and acting very quickly as most appeals need to be lodged within 21 days of judgment. Any costs involved in this process are usually borne by the party who loses the appeal, who also has the added risk that they may be ordered to pay the costs involved in the first instance decision as well.
Does the winner take it all? This can be a very expensive and risky process. Not just to the losing party, but also to the winner who will need to consider how to fund the process before costs are paid out. However, it isn’t always straightforward or necessarily ordered that the winner will receive their costs, particularly if the losing party doesn’t have the funds or assets to pay these. There are very few circumstances in which 100% of the costs incurred by the parties are recoverable, even with a supportive costs order. What is clear is that none of the risks seem to fall on the court or the judge. Can this be right, especially when the underlying error, necessitating the appeal, has been caused by a misapplication of the law or facts?
I want to pause here and say that this entry is not about me criticising the judiciary in any way, shape, or form. Judges play a critical role to our legal system and make incredibly important decisions. However, what I find difficult to reconcile is that there aren’t many, if any, other professions where there is no process to hold someone accountable where an error or mistake is made. To some extent, I understand that how a case is dealt with will depend on the parties involved (some more reasonable than others), the lawyers (both solicitors and barristers) and how the case is presented.
A degree of discretion regularly happens in some areas; for example, where deciding on the finances that should be awarded for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975, the Court has a wide discretion and can do so by justification against the factors set out in Section 3. Outside of this, should there be more accountability or a system of insurance so that the court can reimburse the parties for them having to make an appeal to correct the initial decision, rather than the cost falling on the parties alone?
As members of the legal profession, we are accountable to the Solicitors Regulation Authority for our actions, and if sufficiently serious after investigation this may involve a referral for consideration by the Solicitors Disciplinary Tribunal. There are also professional indemnity insurers where, if the actions we are involved in result in a professional negligence claim, the associated losses can (potentially) be recovered. If an error is made by a doctor, there would be consequences involved for their actions as they are also backed by insurers, and then they are accountable to the General Medical Council. There could be a case to say that there should be a similar system when it comes to the judiciary; in terms of appropriate insurance should there be a loss to one or more of the parties involved, particularly given how costly it is to appeal a case?
I’d be intrigued to see if there was much scope to consider the issues arising with an appeal. Making mistakes is part of being human and this does happen across all professions. However, in an age where access to justice is increasingly important, claims involving contentious probate are continuing to rise and we are still in a cost-of-living crisis, it does seem odd that there are still a lot of barriers involved to someone trying to seek appropriate remedy to their decision. As probate cases are usually deeply personal (more so than commercial and corporate work), it does often mean that those without the funding can find themselves in a very expensive game of chicken… hopefully coming out on the right side in the end.
Sarah Bolt – Managing Associate at Freeths LLP – sarah.bolt@freeths.co.uk
