Daliah Dorit Sherrington & Ors v Sherrington

LORD JUSTICE PETER GIBSON: We are now asked to deal with certain consequential matters.

We will take first the application for permission to appeal, which is made by the unsuccessful claimants. We refuse that application. We do not think that it is an appropriate case for us to be making that order. The claimants will have to seek to interest their Lordships' House.

Next comes costs. First, the costs of the appeal. Although Mrs Talbot Rice has said that the claimants should not have to pay any part of the costs of the appeal, alternatively only a small proportion of costs, because of the various points on which the successful appellant failed before this court, we have reached the view that in substance the appellant has succeeded on the appeal. We do not think it an appropriate case to assess the costs by reference to issues. We therefore will award the whole of the costs of the appeal to the successful appellant in accordance with the ordinary rule.

We turn next to the costs of the trial. Here again there has been an argument put forward that the appellant's costs should not be borne by the (in the result) unsuccessful claimants. We take the following matters into consideration. First, because of the evidence of the attesting witnesses, there was some doubt raised which made it reasonable for the claimants to have the issue of the due execution of the will resolved by the court, and it was therefore reasonable for the claimants to require that that matter be litigated. We also take into account the fact that in the appellant's notice the appellant asked only for an order that the claimants pay 50% of the defendant's costs of and occasioned by the action. We think that that is the appropriate order to be made.

We reject the further argument that the claimants should have their costs paid out of the estate. This was very hostile litigation. The allegations that were made against the successful appellant were very serious and this contributed to the hostility of these proceedings.

Accordingly, we therefore only order that the claimants pay 50% of the defendant's costs of the action.

Then there is a question raised as to the costs of the appointment of the temporary administrator and the costs of the administration. We think that because it was reasonable for the claimants to have put the issue of the due execution of the will before the court, an administrator would have had to be appointed. We think it appropriate that the costs of the application for an administrator and the costs of the administration should be paid out of the estate and not be added to the costs of the proceedings.

Next comes the application for an interim payment. Mr Boyle has told us that the appellant's costs of the appeal are some £125,000. He asks that a payment of £50,000 should be made. We think that that is an appropriate order to make.

We think that that deals with all the questions of costs. There are some questions as to the form of the order. We would ask that counsel should agree a minute as to the appropriate form of the order.

We conclude with one further comment. We have made certain orders which will result in a large sum being payable by the claimants (the children of the testator, to whom he was devoted) to Yvonne (the widow) who has taken the whole of the estate. The fact that we have ordered such payment to be made does not, of course, mean that necessarily the person in whose favour it is made will or should enforce such an order. We commented in our judgment on what we felt would have been a fair result in this case had there been a discretion given to us. We acknowledged, and again we acknowledge fully, that what has been said against the successful appellant in the course of this hearing will have been extremely hurtful to her. Nevertheless, we once again urge her, before she decides to implement the award which we have made, to consider what the testator said to the appellant's daughter, Nathalie, according to Nathalie's evidence, about the appellant looking after his children in the event that has in fact occurred.

We express the hope that the appellant will be merciful before she seeks to enforce any such order that we have made.