Ellis v Ellis: Costs consequences and Part 36 offers in contentious probate litigation

In Luke Ellis v Stephen Ellis & Ors [2025] EWHC 2609 (Ch), HHJ Michael Berkley delivered an extensive costs judgement following a contentious probate dispute, providing important guidance on pre-action conduct, mediation obligations, and the application of probate-specific costs exceptions.

Background and procedural history

The dispute concerned the validity of Yeamon Keith Care's will, executed in August 2016. The claimant Luke Ellis sought to prove the will in solemn form, whilst the third defendant Vivian Care (Keith's brother) challenged it on grounds of testamentary capacity, knowledge and approval, and due execution. Vivian also pursued a proprietary estoppel claim. Following a successful trial for Luke, the costs hearing addressed whether departures from the general rule that costs follow the event were warranted.

Pre-action conduct and the duty to issue letters of claim

The third defendant argued that Luke's failure to issue a letter of claim before commencing proceedings in July 2022—some 28 months after Keith's death—constituted a brazen breach of the Practice Direction on Pre-Action Conduct. However, HHJ Berkley rejected this characterisation. The court found that Vivian had possessed sufficient documentation to formulate his case by summer 2021, having received Keith's will file, signed mandates for disclosure, and access to most relevant records by December 2020.

The court distinguished Merial Ltd v Sankyo Co Ltd [2004] EWHC 3077 (Pat), concluding that a letter of claim would have made no difference to the litigation's trajectory. Luke's case was straightforward—seeking to prove a professionally drafted will—whilst Vivian repeatedly promised but failed to deliver his own letter of claim despite having unique knowledge of his proprietary estoppel claim.

Refusal to mediate and ADR obligations

Vivian contended that Luke's refusal to mediate until September 2023 warranted a costs sanction, citing Northamber Plc v Genee World Limited [2024] EWCA Civ 428. The court held that Luke's position was reasonable given Vivian's refusal to provide early disclosure of crucial evidence, including medical records not disclosed until after the case management conference in June 2023.

The relevant delay spanned only March to September 2023. The court found it perfectly reasonable for Luke to await disclosure from the CCMC before agreeing to mediation, particularly where Vivian held all material evidence supporting both his capacity challenge and proprietary estoppel claim.

Application of probate exceptions

The court comprehensively rejected both traditional probate exceptions to the costs-follow-event rule. Regarding the first exception (testator causing litigation), HHJ Berkley endorsed the approach in Kostic v Chaplin [2007] EWHC 2909 (Ch) and Leonard v Leonard [2024] Costs LR 723, declining to depart from Re Cutcliffe's Estate [1959] P 6. Keith's conduct—allowing familial expectations to develop without making serious promises—fell far short of the required threshold. The court emphasised that testators need not justify their testamentary dispositions or inform family members of will contents.

As to the second exception (reasonable grounds for investigation), the court determined that the investigation period concluded by August 2021 for most issues, and by March 2022 for the due execution challenge. Medical evidence never suggested incapacity, and the professionally drafted will accorded with detailed attendance notes.

Part 36 consequences

Luke's Part 36 offer of 15 January 2024, offering two fields, two tractors, and £20,000, was upheld as valid and genuine despite technical objections. The court applied modified Part 36.17 consequences, reducing the interest rate on costs from 10% to 5% above base rate given the offer's proximity to trial, whilst maintaining the enhanced costs basis from the relevant period's expiry.

The third defendant was ordered to pay both Luke's and the executors' costs, with payment on account fixed at £94,000 for Luke (representing approximately 90% of budgeted and 75% of incurred costs) and 85% of the executors' budgeted costs.