This question was dealt with by Senior Costs Judge Rowley in The Personal Representatives of the Estate of Maurice Hutson (deceased) & Ors v Tata Steel UK Ltd [2025] EWHC 1594 (SCCO).

The Paying Party challenged the recoverability of the costs of obtaining a Grant of Probate (hereafter “Grant”) within the Points of Dispute as follow:

“The Paying Party refers to the case of Mosson v Spousal (London) Ltd [2016] EWHC 54 (QB) (25 January 2016) and submits that the costs of obtaining a Grant of Probate are not recoverable on an inter partes basis.”

At the Detailed Assessment hearing, the Paying Party submitted that the case of Mosson was an authority for the proposition that the costs of obtaining probate cannot be recovered as damages in claims pursued under the Law Reform (Miscellaneous Provisions) Act 1934. The Receiving Party submitted that the fact that the costs of applying for probate could not be claimed as damages was both ‘incontrovertible and irrelevant’ where these fees have been claimed as items of costs. The Receiving Party invited the Judge to dismiss the point of dispute on the basis that the only argument, the reliance on Mosson, was one of no substance. Whilst the Judge did not disallow the point of dispute, he was clearly not entertained by the argument.

The Judge stated that the nub of the Paying Party’s challenge was the one regularly made by Defendants faced with claims for the costs of probate, namely: would these fees not be required anyway as part of dealing with the administration of the Deceased’s estate? If so, they should not be claimed as a cost of the litigation.

It was agreed between the parties that a Grant was required for a Claimant to pursue a claim under the Law Reform (Miscellaneous Provisions) Act 1934. It was further agreed that if the only reason for the Claimant to obtain the Grant was for this purpose, then the reasonable costs of doing so would be recoverable. If a grant was obtained to administer the estate, then no more than the costs of obtaining a copy could be claimed as a cost of the litigation.

The Paying Party’s case was then how the Claimant was to prove that the Grant was taken out simply for the litigation, and that the need for the Grant should be exclusive to that. The Paying Party went further to say that if the Judge had any doubt as to whether the Grant was obtained exclusively for the litigation, it should resolve the doubt in the Paying Party’s favour, since it was a standard basis assessment, and disallow the Grant costs claimed. The Receiving Party did not accept that the exclusive test was appropriate.

The Judge also did not accept the Paying Party’s approach as it was his view that this was not a situation where there was likely to be any doubt. He stated that:

“The question was really how much evidence was required to establish that the Claimant would not have sought a Grant if it were not to make a claim?”

In the present assessment, the solicitors for the Claimants had provided evidence about the size of the relevant estates, and why grants were not required to deal with items such as bank accounts, which would often be released without great formality.

The Judge recognised that there was a lack of any recent or easily accessible authorities on this point, so gave the following guidance:

“In my view, the bar for establishing that the Grant was obtained for the purposes of the litigation is not a particularly high one. If the personal representative or administrator attended Court on the assessment of their costs, it would require no more than their confirmation that the grant had been obtained for the litigation for the costs of so doing to be allowed in principle. Consequently, the witness evidence of the two solicitors in these cases which is both detailed and backed by supporting documents is more than sufficient in my judgment to establish these claims.”

In light of this judgment, practitioners would be well placed if they contemporaneously documented their file to reflect why a Grant would not have been required but for the litigation. This may be helpful in resolving challenges on the recoverability of these costs at an early stage, but if not, would be a helpful document to use as evidence in support, as the solicitors did in the Hutson case, if the costs were disputed and the matter proceeded to a detailed assessment.

Ellena Hunter is an Associate in Clarion’s Costs and Litigation Funding Team and can be contacted on 07979 199145 or Ellena.hunter@clarionsolicitors.com