Judgement has been handed down by the Court of Appeal in Bowser v Smith [2023] EWCA Civ 923, in which Edward Hicks was instructed by Polly Stephenson of Ashtons Legal. This is a cautionary tale highlighting the risks to Personal Representatives (PRs) in aggressively pursuing an application for the removal of their co-executor, the need to resort to such litigation as a last resort, and the importance of good practice pre-action.
The case concerned an appeal against a cost award made on a professional executor’s claim to remove the deceased farmer’s widow as co-executor. The couple had been in the process of divorcing and financial remedy proceedings were pending when the deceased was killed in a road traffic accident. His will appointed a solicitor and his widow as executors, and divided the estate equally between the couple’s ten children (including eight minors). The appellant solicitor, without following normal pre-action procedures, or seeking Beddoe relief, brought a hostile claim for the widow’s removal as co-executor, in particular on the basis of an alleged conflict as she intended to pursue a 1975 Act claim. The widow disputed the alleged conflict and complained about the solicitor’s own conduct, but offered to stand down if he did too, in favour of an independent professional PR. The solicitor refused and pressed for a hearing, during the course of which he finally agreed the appointment of an independent professional in place of both executors. Costs remained disputed. Following written submissions Bacon J ordered the solicitor to pay the widow her costs, and deprived him of his indemnity. The appellant appealed to the Court of Appeal.
The Court of Appeal dismissed the appeal. The Court addressed the proper approach to an award of costs following compromise of the balance of the case, finding that as the parties agreed to Bacon J dealing with costs on the papers, it would only be appropriate to intervene if the result had been “manifestly unjust”, which it was not. The Court found that Bacon J was entitled to conclude that the solicitor’s conduct in bringing and pursuing the proceeds was not a proper and reasonable exercise of his powers as an executor, emphasising the need for litigation to be a last resort, for proper pre-action procedures to be followed, and the risks of proceeding in such a case without Beddoe relief (the cost and requirements of which ought to have focussed his mind). The solicitor had in substance been the unsuccessful party given the positions each party had adopted in the litigation. The dispute could have been resolved at a fraction of the cost incurred had the widow’s proposal been accepted earlier.
The Court found that the widow had not been conflicted by reason of her intended claim, approving commentary in the leading textbooks to the effect that a PR can also be claimant under the 1975 Act without necessarily having to stand down, provided they can keep the two capacities distinct. Ironically, following late disclosure of further evidence admitted in the appeal, it transpired that it was the solicitor who had been in a position of conflict due to his involvement in the deceased’s affairs whilst divorce proceedings were contemplated.
Read the full judgement here.
