It has been common practice for solicitors and other practitioners to advise that in many cases, the estate will bear the costs of any contentious litigation, but it is also becoming more apparent that the courts will consider the conduct of parties when considering where the burden of costs should fall and as practitioners, we need to ensure that we are properly advising our clients on the issue of costs. It is no longer just the case that we can rely on the principle of law and costs following the outcome of a case; we must teach our clients to tread the path of contentious litigation carefully and with due consideration to the exposure of costs, regardless of whether their position is ‘legally correct’.

In the case of Burgess v Penny (2019) the courts looked specifically at the costs of the case, who should bear the burden of them, and what conduct should be taken into account. A typical family made up of a brother and two sisters, became embroiled in litigation. Their mother had left a will leaving her estate equally between them; nothing unusual there. The brother applied to have the will proved in solemn form and the sisters made a challenge, contesting that there were concerns over validity.The sisters were right from a ‘legal’ perspective to make a challenge and to call for investigation over how the will was executed, and that was acknowledged in the judgement. But the outcome they were actually seeking, which was no doubt for them to ‘prove’ that their brother ‘had done wrong’ in assisting his mother with the will, was not something that the courts considered should be for them to deal with. That was something that the parties needed to deal with between themselves on an emotional level, and the fact that the two sisters failed to enter into mediation was a key point in this case.

Interestingly, very early on in proceedings, all three had said that they would accept an equal distribution of the estate, which would be the case regardless of whether the Will was valid or not. So why the need to litigate?

Families have that magic combination of close ties and often, a feeling of competition between siblings. Mixed together, this can result in each side ‘sticking to their guns’ because of the ‘principle of the matter’. What cases like Burgess have shown, is that the courts will always consider law as a matter of principle, but when it comes to costs, the courts must take a rounded view and so will look at whether any party has created a situation where unnecessary costs have been incurred due to a failure to mediate, or due to other conduct.

So where does that leave us?

As always, I believe that a common sense approach is necessary and that not only do we have a duty to make clients aware of the law and what is or is not possible in terms of claims, but we also need to make sure that despite any adverse feelings they have towards their siblings or family members, that they need to be careful not to let that influence their decisions when it comes to pursuing what could be seen as unnecessary litigation.

There is always a need to consider proportionality, but more than that, there is a need for early engagement in finding solutions that reduce the risks that come with entering into contentious litigation. We can no longer simply rely on that fact that our costs will be paid from the estate, and rightly so. These matters are often complex, involve multiple parties and become particularly acrimonious very quickly. But explaining that to a client can be a tricky business.

It is important as a practitioner to also properly assess the emotional cost to these families. They may have cause to argue, but are they really aware of the risks involved both to the ongoing family relationships, not just their own, but of those of their children? Do they understand that regardless of their own views that everyone can come out of the situation out of pocket? There is no certainty over costs when it comes to these cases.

Do they realise that regardless of any ‘principle’ they believe in, that there is still a need to engage in a civil manner and to attempt to mediate? Simply trying to throw mud at each other in order to prove a point puts them at risk of costs, both monetary and in terms of the ongoing relationships within the wider family.

Mediation will not work in all cases, but it must be considered as a serious alternative to litigation. It can help to reach a solution that works to avoid litigation and can also provide a safer environment for parties to express their emotions and the impact that the discord has created. It can be a form of healing that can assist not just the clients but help to maintain better relations across the next generations within those families.

I, like many others in this area, have always viewed my job as part solicitor and part counsellor, although I do not profess to have any qualifications as a counsellor! Often, I spend more time listening and as a sounding board to clients, as supposed to advising on the likelihood of successfully making a claim. There are times when all I can do is listen and provide emotional support and make suggestions on how they can seek support for any needs they may have relating to their wellbeing and mental health, as from a legal perspective, I cannot give them the solution they want. And that is fine with me. Ultimately, my aim is to ensure that a client leaves me in a better position, feeling more able and having overcome any concerns and of course, that is entirely subjective. So long as I have given sound legal advice and provided them with the pros and cons of any action, and opened their eyes to the wider benefits of mediation, then I have done my job.

Sadly, there are times when litigation is unavoidable, but even then, we must consider all other options available to protect our clients from adverse cost orders and always remember that there are wider matters at stake. We may only be solicitors, but we are dealing with real families and the distress and emotions resulting from a close bereavement. The price of maintaining a relationship with family should not be forgotten.

Contact our Director Solicitor, Charlotte Corbyn at