Kerry Underwood

COSTS: HE WHO WRITES THE CHEQUE PAYS THE COSTS

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In Wall v Munday [2018] EWHC 879 (Ch)

the Chancery Division of the High Court allowed an appeal against the order of the Recorder in relation to the incidence of costs.

The substantive case concerned whether or not the estate was entitled to a share of the proceeds of a property that had been held by the deceased and his former wife as joint tenants.

 

The rival positions were:

 

  • Mrs Munday claimed she was entitled to “scoop” the lot as the survivor of a joint tenancy;

 

  • Mr Wall, on behalf of the estate, claimed that the estate was entitled to the whole sum;

 

  • In the alternative Mrs Munday counterclaimed that the property belonged beneficially to the estate and her in equal shares absolutely.

 

 

The Recorder dismissed Mr Wall’s claim and allowed Mrs Munday’s counterclaim, the net effect being that the proceeds of the property were to be split equally between the estate and Mrs Munday.

None of those findings was challenged on appeal, and the appeal related only costs.

The Recorder had ordered Mr Wall, on behalf of the estate, to pay 80% of Mrs Munday’s costs.

Mr Wall argued that he had been the true winner in the litigation as the starting point had been that the estate got nothing and the result was that the estate got 50% of the proceeds of sale and so the net effect was that the estate gained 50% of the proceeds of sale and Mrs Munday lost 50% of the proceeds of sale.

The Chancery Division agreed and overturned the Recorder’s decision and ordered Mrs Munday to pay the costs of the action.

However the Chancery Division recognised that there should be a discount from a 100% order to reflect those aspects of the case where Mr Wall had failed.

Consequently the Chancery Division discounted the costs that Mrs Munday had to pay to Mr Wall by 40% and thus allowed the appeal on costs and substituted for the Recorder’s order an order that Mrs Munday pay 60% of Mr Wall’s costs.

Thus the Chancery Division followed the line of cases whereby the person who has to write the cheque in the litigation, in this case clearly Mrs Munday, has to pay the costs.

 

The court also referred to the decision of the Court of Appeal in

 

Day v Day [2006] EWCA Civ 415

 

where the facts were very similar to this case and where the party who had lost part of the proceeds of sale was ordered to pay the costs.

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Written by kerryunderwood

May 17, 2018 at 8:32 am

Posted in Uncategorized

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