Costs incurred in litigation about estates

One of the amendments to the 57th Update to the Civil Procedure Rules, which comes into force on 1 October 2011, introduces costs capping rules in relation to trust funds.

What is peculiar about this change is, so far as I can see on a brief review, it does not give any guidance as to the factors the court is to take into account when deciding whether to make such an order. It purports to supplement CPR 44.17-20 which introduced the restrictive approach to such orders. However, the very introduction of the rule for this type of case and the fact the court is specifically permitted to consider making such an order of its own initiative implies that these may be made much more frequently than generally. The explanatory note reads: “Minor amendments are made to streamline the process and minimise work and costs incurred in litigation about estates”. Are costs capping orders coming back into vogue?

The relevant changes to the Costs Practice Direction are:

(1) After paragraph 23A.5, insert—


23B.1 In this Section “trust fund” means property which is the subject of a trust, and includes the estate of a deceased person.

23B.2 This Section contains additional provisions to enable—

(a) the parties to consider whether to apply for; and
(b) the court to consider whether to make of its own initiative,
a costs capping order in proceedings relating to trust funds.

It supplements rules 44.17-20 and Section 23A of this Practice Direction.

23B.3 Any party to such proceedings who intends to apply for an order for the payment of costs out of the trust fund must file and serve on all other parties written notice of that intention together with an estimate of the costs likely to be incurred by that party.

23B.4 The documents mentioned in paragraph 23B.3 must be filed and served—

(a) in a Part 7 claim, with the first statement of case; and
(b) in a Part 8 claim, with the evidence (or, if a defendant does not intend to serve and file evidence, with the acknowledgement of service).

23B.5 When proceedings first come before the court for directions the court may make a costs capping order of its own initiative whether or not any party has applied for such an order.”.

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