Stoney-Anderson v Abbas & Ors [2023] EWHC 2964 (Ch)
The Issue:
An executor fought his corner to stay as executor despite all wanting him gone. All parties were set to mediate and then one of them backed-out. Protracted litigation and the inevitable high legal costs and lengthy court resource time followed. Who should pay?
The Debate
Most of the case which should have been about who got what from the inheritance pot of £491,154 turned into costs fight.
The Judge was not happy that the winning party (the Claimant) had withdrawn from the agreement to mediate, setting the stage for protracted and costly litigation.
The Judge was also not happy that the Executor had hung on my his fingernails adding to the protracted litigation all round.
The Court waved their Court's-discretion wand and took a good look under the bonnet on who should pay what costs.
The Result
No following of the typical “losing party pays the winner’s costs” here for the party who withdrew from mediation. Nope.
The Judge did not like the ‘winner’s “hokey-cokey” approach to mediation and limited her costs to 50% on the standard - not indemnity - basis as a lesson “to mark the court’s disapproval of the failure to take up the suggestions of mediation/ADR”.
The Executor's conduct also raised more than an eyebrow, so he was deprived of his Executor indemnity.
The Judge said: “It is commonplace that both sides are told by their lawyers that they will win. But they cannot both be right. Indeed, sometimes both sides are wrong. The combination of litigation risk and irrecoverable costs almost always makes it worthwhile considering mediation and other ADR. On the material before me, the claimant did not give enough thought to this. In accordance with the case law, I consider it appropriate to mark the court’s disapproval of the claimant’s failure to take up the mediation/ADR suggestions of the first and second defendants.”
Mediators across the land said: : "Quite right Judge. Just goes to show there are risks to standing your (Stoney) ground."
Everyone groaned.
A dispute is an opportunity for growth.
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