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Administrators, burials and costs – John McKendrick QC defends appeal against costs order by the successful party in burial dispute.

John McKendrick QC has been successful in defending a costs order appeal by the son of his client’s late husband after the judge departed from the general rule of awarding successful parties their costs in Algeilani v El Samawi [2021] EWCA Civ 997. Alex Cisneros provides a helpful case summary .

The deceased’s son had succeeded in his claim exclusively by the introduction of a new argument. This new point was only raised following circulation of a draft judgment giving judgment against him. The judge reconsidered his judgment in light of this new point but, in the subsequent costs order, the judge decided to award costs only from the date he introduced the new argument. The judge also required the Appellant to pay the Defendant’s costs up to that point on the basis that up to that point, the Respondent had succeeded in defending the claim.

The background

The deceased worked in the UK from 1963 to 1981, thereafter returning and remaining in Saudi Arabia until shortly before his death. In January 2019, the deceased moved back to the UK with the respondent, his third wife. When he died, his wife wanted him to be buried in the UK. However, the deceased’s son from a previous marriage wanted him to be buried in Saudi Arabia.

In a pre-action application, the son sought an injunction preventing the wife from giving any direction as to the disposal of the body. Norris J made an interim order to the effect that neither side would give directions of this ilk pre-trial. The Non-Contentious Probate Rules 1987 r.22 place a surviving spouse higher for a grant of administration than any children of the deceased. Therefore, in late August 2019, the son sought an order under the Senior Courts Act 1981 s.116 appointing him as an administrator in the wife’s place. In the alternative, the appellant sought an order under the court’s inherent jurisdiction that he should be responsible for the burial. No reference was made in the pleadings to the domicile of the deceased when he died, and despite submissions disputing the domicile of the deceased no further submission “link[ed] the outcome of this dispute to the question of the court’s powers” (para 9).

After the trial, the judge circulated his draft reserved judgment to the parties. The judgment resolved the domicile dispute, finding that the deceased was domiciled in Saudi Arabia when he died; that the court’s inherent jurisdiction did not come into play because the case involved competing priorities under Rule 22; and that no special circumstances existed warranting the appointment of the son as an administrator under s116.

Post-circulation changes

Following circulation of the judge’s draft, the son’s new counsel sent draft grounds of appeal to the judge which raised a new point, that where the deceased was domiciled outside England and Wales, r.28(2) disapplied r.22 and s.116. Exercising the jurisdiction recognised in Re L and B [2013] UKSC 8, the judge reconsidered his judgment. Subsequently, the judge accepted that r.22 and s.116 did not apply; that the relevant power was within the court’s inherent jurisdiction; and that under the inherent jurisdiction special circumstances were not required for an appointment. Ergo, the son was appointed as administrator and the deceased was buried in Saudi Arabia.

With respect to costs, the judge departed from the general rule of awarding successful parties their costs, ordering instead that the claimant should only recover his costs from after the new point was raised by the new counsel. For the temporal period before this, the claimant would bear the defendant’s costs.

The appeal against the costs order

The claimant appealed the costs order, contending the judge erred in principle by going “beyond the wide discretion afforded under CPR Part 44”. John McKendrick QC was instructed to appear for the respondent just a few weeks before the appeal was due to be heard. He had not appeared for her before.

Birss LJ noted that Auld LJ, in the case of Islam v Ali, stated that trial judge[s] have a “wide discretion” taking into account all the circumstances and conduct of the parties. He dismissed the claimant’s counsels’ arguments relating to raising a new argument of law not being “conduct” within the provisions of the CPR, finding the trial judge entitled to depart from the general rule with his decision being within “the wide ambit of the discretion afforded to a judge in such a case” (para 33).

As such, the appeal was dismissed.

About the author

Alex Cisneros is a private client barrister at Outer Temple Chambers and comments that this was an unusual case involving a novel attempt to use the High Court’s inherent jurisdiction. The helpful judgment exemplifies the court’s wide discretion to depart from the general rule as to costs. John McKendrick QC argued, and the court agreed, that there was no basis for the appellate court to intervene in the exercise of this wide discretion in this case.

This was clearly a sensitive case which the court wanted to deal with expeditiously. The late introduction of a killer point in that context was not received well by the court. While it is not unusual for new arguments to arise after pleadings have been filed, the reality is that late introduction of points may shift the balance for costs orders at the end of a case.

To find out more, contact Matt Sale (+44 (0)20 7427 4910) or Peter Foad (+44 (0)20 7427 0807) or call us on +44 (0)20 7353 6381 for a confidential discussion.

Legal Blog & Publications, News 17 Aug, 2021


John McKendrick QC

Call: 1999 Silk: 2016

Alex Cisneros

Call: 2015

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