Case: Packer v Packer [2025] EWHC 27 (Ch)
The Claimant, was the widow of the ‘deceased’ who died on 5 July 2022. She said that he died intestate. The Defendant was the sister of the deceased. She says that he made two wills before he died, one in 2017 and one in 2022, by which she was appointed executrix, and which cannot now be found. The Claimant sought an order that letters of administration be issued to her. The Defendant defended the claim and requested that the Court instead uphold the 2022 will.
At the pre-trial review, the Court dealt with an application made by the Claimant for an order permitting her to amend her Reply to remove an allegation that the Defendant fraudulently created the 2022 will. At the hearing, the Defendant consented to the application however, there was no agreement about the costs of the application.
The Claimant sought an order for her costs of the application, or at least for no order as to costs. This was, firstly, on the basis that the Defendant should have consented to the application after it was sent to her in draft on 14 December, and not waited until the hearing, and, secondly, in fact the conduct of the Defendant meant that it was reasonable for the allegations to be made and that either the Claimant should have her costs, or at least that there should be no order as to costs. The Defendant submitted that she should have her costs of the application, and a proportion of the costs of the whole claim so far, to represent costs spent in responding to the fraud allegation. This was on the basis that the Defendant had had to deal with the application, and that costs should follow the event.
Ultimately, the Court saw no reason not to make an order as to costs in that the Defendant was the successful party as the Claimant has sensibly abandoned an allegation which she could not properly make.
The application of the general rule would lead to an order being made for the Claimant to pay the defendant’s costs of and occasioned by the application. As to the reasonableness of the fraud allegations, the Court held that the Claimant’s conduct in alleging fraud against the Defendant was not reasonable in all the circumstances. HHJ Matthews said ‘Fraud is a serious matter’ and referenced the Chancery Guide at para 4.9 ‘A party should not make allegations of fraud or dishonesty unless there is credible material to support the contentions made’ HHJ Matthews went further and said that ‘, even if it had been reasonable for the claimant to advance the fraud allegation, that would not mean that there was a good reason to depart from the general costs rule. The fact is that, during litigation, the parties’ positions change as more information is acquired. A party who alleges fraud and then realises that it is no longer a tenable allegation should of course apply to amend the relevant statement of case. But it is not a reward for “reasonable” pleading to excuse the amending party from the general rule of paying the costs of and occasioned by the application to amend’.
As to the Claimant’s submission that the defendant should have consented to the application after it was sent to her in draft on 14 December, HHJ Matthews stated that ‘the Defendant is a litigant in person. She can hardly be criticised for wishing to take legal advice before deciding what to do about the application. That legal advice could not easily be obtained on just before Christmas, nor probably very easily between Christmas and New Year. I am frankly not surprised that it has taken until the beginning of this week for direct access counsel to be instructed, to look at the application and to give advice to the defendant which could be acted upon’.
In summary, HHJ Matthews held there was no good reason for not applying the general rule for the costs of and occasioned by the application on the standard basis. HHJ Matthews caveated that those costs would not include any proportion of the costs already incurred in the litigation by the Defendant in responding to the allegation of fraud which had now been abandoned however this would be dealt at detailed assessment.
Commentary – A reminder of the consequences of alleging fraud in proceedings.