Richard John Shearing v PG & Anor

This is the decision in relation to various applications which have been made following the conclusion of an application for a statutory will which was heard on between 24 and 26 February 2026 with oral judgment being given on 9 March 2026.

The Applicant, who is the professional deputy for property and affairs for PG, and the Official Solicitor, who is Litigation Friend for PG (the First Respondent), seek an order for CT, who is the Second Respondent, to pay their costs. The applications for costs have widened to include a request for costs on the indemnity basis against CT and a request for liberty to apply to seek a non-party costs order against CT’s husband.

The Official Solicitor also asks for a transcript of the judgment to be published and for the Transparency Order to be lifted in so far as it related to CT and her husband.

By the judgment of 9 March 2026 a statutory will was held to be in PG’s best interest. The effect of that statutory will was to disinherit CT who was otherwise residuary beneficiary under an earlier will.

I have the benefit of submissions from all parties, submissions in reply from the Official Solicitor and some exchange of e mails between the parties, for which I am most grateful.

CT lacked credibility. She had bleeding to her brain in November 2019 and March 2021. She said that her memory was affected by this bleeding on the brain and that was why she was unable to answer many questions put to her. Her evidence of a poor memory as a result of the bleeds reduced her credibility. She was repeatedly asked to clarify in cross examination whether she was saying she did not know the answer to a question or whether she was saying ‘no’ to a question. She would change her answers. These difficulties undermined her credibility. Also, she gave conflicting answers and answers which were undermined by contemporaneous documents.

It is clear that PG voices support for CT and her husband, as well as her daughter PT over the relevant period (06.08.19 to 04.06.21). That is not in any way determinative of whether he was subject to financial abuse.

On the balance of probabilities CT took PG to the Nationwide Building Society on 17 January 2019 and attempted to get PG to withdraw money for her benefit (which was nothing to do with a car purchase, despite CT’s account).

The Applicant took the court to a number of withdrawals, and one transfer, from PG’s account which it was submitted had a clear correlation with money coming in to CT’s account from her husband and/or an absence of withdrawals from the account, which, it was submitted, was because CT was spending PG’s money which had been withdrawn in cash. However, there was an issue raised by CT about PG having further accounts and moving money between them which neither the Applicant nor the Official Solicitor could answer. I was unable to find on the balance of probabilities that CT was receiving money which originally came from PG based on the pattern of withdrawals from PG’s account to which I was taken. I note that this took a considerable amount of court time.

I found on the balance of probabilities that CT’s husband was visiting PG in order to take money from him and was abusing him financially.

On the balance of probabilities both CT and her husband were involved and knew they were both involved in taking money from PG. They knew PG had cognitive difficulties. They knew he confused facts and confused events. Thus, CT’s husband said on 13 February 2019 to the police that PG was getting confused about transactions.

I did not find that each of the cash withdrawals from PG’s account which the court was taken to is proven abuse.

I did not find that each of the payments PG made when he was with CT was an example of abuse, it may well have started as each of them taking turns to pay for things, and due to PG’s generosity when he had capacity to manage his property and affairs.

However, CT and her husband consistently gave a false account of why money came from PG to them.

CT and her husband were closely connected with deciding the contents of the 2019 Will and influencing PG on that.

My judgment found it was PG’s wishes and feelings which were the factor of magnetic importance. They are not relevant to the applications since judgment.

The Applicant says that CT’s conduct deserves censure, and the appropriate way to mark it is for her to be ordered to pay the Applicant’s costs. The alternative is that PG will have to bear the costs of the Applicant defending his best interests, in circumstances where the opposition to the proposed statutory will was self-interested, doomed to fail and perpetrated by a dishonest individual who had been financially abusing him. If the court is not with the Applicant on the above then at the very minimum it is plain beyond any reasonable argument that CT’s costs should not be payable by PG or his estate, as the general rule would otherwise require. She must on any possible view bear her own costs.

The Official Solicitor seeks the following:

CT does not seek payment of her own costs, which she agrees to bear. She resists payment of the Applicant and Official Solicitor’s costs, she resists payment of costs being on an indemnity basis and she resists an interim payment on account of costs, proposing that if such an order is made, a payment schedule should be ordered. She cannot speak for her husband but queries the way in which an order relating to non-party costs is sought.

First, I turn to the application by the Official Solicitor, that in the event that any part of a costs owed by CT to the other parties is not paid within 28 days of those sums becoming due, the Applicant shall have liberty to apply for a non-party costs order against her husband. The Official Solicitor has not referred me to rules, whether the Civil Procedure Rules 1998 or the Court of Protection Rules 2017, as to there being any necessity or appropriateness of making an order giving liberty to apply for a non-party costs order. If the Official Solicitor wishes to make such an application she should do so, being compliant with court rules and practice directions. I note that the Civil Procedure Rules provide that:

“Part 19 Costs

19.12.— Costs orders in favour of or against non-parties

(1)

Where the court is considering whether to make a costs order in favour of or against a person who is not a party to proceedings, that person must be—

(a)

added as a party to the proceedings for the purposes of costs only;

(b)

served with such documents as the court may direct; and

(c)

given a reasonable opportunity to attend any hearing at which the court will consider the matter further.

(2)

This rule does not apply where the court is considering whether to make an order against the Lord Chancellor in proceedings in which the Lord Chancellor has provided legal aid to a party to the proceedings.”

It is not appropriate to give liberty to make such application, particularly when the non-party has no notice of the application. There is no mention of liberty to apply in the rule above. There are directions for any non-party who may be affected to be enabled to participate in the application. To make any order concerning them without them having been given an opportunity to participate on the application would not be a fair determination for the purposes of Article 6 and would offend natural justice. This determination on first principles is entirely independent of whether costs are ordered against CT, to which I turn now.

The parties refer me to Rule 19 of the Court of Protection Rules 2017 (“the Rules”) on the question of costs. The general rule is that the costs of property and affairs proceedings are paid by ‘P’ or charged to his estate. Each party seeks to depart from the general rule. CT herself does not seek her costs from P’s estate. Rule 19.5 provides:

“Departing from the general rule

19.5.—(1) The court may depart from rules 19.2 to 19.4 if the circumstances so justify, and in deciding whether departure is justified the court will have regard to all the circumstances including—

(a)the conduct of the parties;

(b)whether a party has succeeded on part of that party’s case, even if not wholly successful; and

(c)the role of any public body involved in the proceedings.

(2)

The conduct of the parties includes—

(a)conduct before, as well as during, the proceedings;

(b)whether it was reasonable for a party to raise, pursue or contest a particular matter;

(c)the manner in which a party has made or responded to an application or a particular issue;

(d)whether a party who has succeeded in that party’s application or response to an application, in whole or in part, exaggerated any matter contained in the application or response; and

(e)any failure by a party to comply with a rule, practice direction or court order.

(3)

Without prejudice to rules 19.2 to 19.4 and the foregoing provisions of this rule, the court may permit a party to recover their fixed costs in accordance with the relevant practice direction.”

I accept CT’s submission that in circumstances where she has a resisted a statutory will which was in fact authorised by my order, it is appropriate to depart from the general rule as all parties propose.

I am not bound by Rule 19.5 in the exercise of my discretion as to how to depart from the general rule in terms of the order I make. It may however, offer useful reference.

On conduct, CT’s evidence was found to be unreliable but I made no finding that she deliberately misled the court. I accepted her evidence that her memory was poor.

I made adverse findings that CT took PG to the Nationwide Building Society on 17 January 2019 and attempted to get PG to withdraw money for her benefit, that on the balance of probabilities both CT and her husband were involved and knew they were both involved in taking money from PG, that CT and her husband consistently gave a false account of why money came from PG to them and that CT and her husband were closely connected with deciding the contents of the 2019 Will and influencing PG on that. Those factors should lead to consideration of making a more adverse costs order than that which CT suggests.

The Official Solicitor says that CT’s failure to accept the Official Solicitor’s open offer of 4 February 2026 , which includes an offer on costs, is support for a costs order against CT. CT’s counter argument is that because that offer concentrated on the nature of the relationship between PG and CT’s family, and the allegations of abuse, it should not affect the court’s decision when compared with the findings made, and it should not be taken account of because of the close proximity to hearing. I am not persuaded by either argument- it offered CT a way out without penalty of costs and she did not accept it although the will was ordered as set out in the offer. If I look across to compare this offer with the provisions of Part 36 of the Civil Procedure Rules 1998, this offer was not made at least 21 days before the hearing, but it was not short by much.

I have regard to the length of time taken in cross examining CT on individual transactions by PG, against a background that PG’s full accounts were not before the court and the cross examination took me no further.

I note that there is no evidence of any attempt at alternative dispute resolution other than the open letter of 4 February 2026 and mention by CT’s solicitors in earlier correspondent, which is a disappointment. I consider that the fact that there is a general rule for property and affairs cases in the Court of Protection suggests that the court is not encouraged to enter into a point scoring detailed allocation of costs.

Having considered the guidance in Rule 19.5 and the relevant circumstances of this case, I consider it is a proper exercise of my discretion to order CT to pay half of counsels’ brief fees for the final hearing for both the Official Solicitor and for the Applicant and no more. The claim for indemnity costs fails.

In principle I approve an interim payment of half the amount of the half of counsels’ fees awarded, so one quarter of the whole.

I do not consider on the fact of this case that it is proportionate to order and approve a transcript of the statutory will judgment for publication. This case turns on its own facts which are particular to it. I am prepared to offer this written judgment on costs for publication if one of the parties seeks publication. I note that the publication requested by the Official Solicitor is not actively resisted by CT. I cannot see that CT has addressed the request to remove her from the Transparency Order and allow her name and that of her husband to be published. I am not aware that CT’s husband has been given notice of this request, which he would have to have been to respect his Article 6 rights, as well as his Article 8 rights. I note that PT is referred to in the judgment. There is no wrongdoing alleged against her. There is no suggestion that she has been consulted on this request. It would not be possible to remove the anonymisation of CT from the Transparency Order without also identifying these two family members. Accordingly, I do not remove CT from the Transparency Order.