Brennan v Prior & Ors

This is an application by the Third to Sixth Defendants under CPR 40.12 (the “slip rule”) seeking the clarification or amendment of an order for costs contained in an order (“the Order”) made on 26 September 2013 by Mr. Mark Herbert QC (sitting as a Deputy Judge of the High Court) at the end of a trial of a probate action concerning the will of Francois Devillebichot (“the deceased”). The essential question is whether the Order provided that the costs to be recovered by the Third to Sixth Defendants from the Claimant (“Mrs. Brennan”) should be limited by reference to the amount of the pecuniary legacy left to Mrs. Brennan under the will.

The background to the case appears from the reserved judgment of Mr. Herbert QC: [2013] EWHC 2867 (Ch). In short, the deceased died on 3 March 2011 leaving a homemade will which he had executed in hospital on 19 February 2011. The First and Second Defendants were witnesses to the will and its executor and substitute executor respectively (“the Executors”). Under the will the deceased gave his daughter, Mrs. Brennan, a pecuniary legacy of £100,000; he gave the Fourth Defendant, his sister, his studio flat in France; and he divided his residuary estate between his siblings (the Third to Sixth Defendants) equally.

Mrs. Brennan challenged the will on a number of grounds, including lack of capacity, fraud and undue influence on the part of the Defendants, but it was upheld by the Deputy Judge. After handing down his Judgment on 26 September 2013, Mr. Herbert QC heard argument on costs. Both the Executors and the Third to Sixth Defendants (against all of whom personal allegations of misconduct had been made) sought orders for costs against Mrs. Brennan on the indemnity basis rather than simply having their costs paid out of the estate. The Deputy Judge was told during that argument that the costs of the Executors were in the region of £87,000, and the costs of the Third to Sixth Defendants were considerably more.

In the course of argument, in addition to seeking costs orders against Mrs. Brennan, counsel for the Executors and counsel for the Third to Sixth Defendants both submitted that such costs should first be ordered to be paid out of Mrs. Brennan’s legacy, with the costs of the Executors taking priority over the costs of the Third to Sixth Defendants in that respect. Counsel for the Executors also sought a payment on account of £50,000. Counsel for the Third to Sixth Defendants did not oppose that and concluded,

“…so that would mean, I suppose, that £50,000 of the £100,000 was appropriated to that payment on account and then [the Executors] would be able to charge the balance of [£37,000] out of the legacy and there would be a little bit left over for us out of the legacy, and then we will just have to do our best as to the balance….”

(my emphasis)

Having heard submissions from Mrs. Brennan, the Deputy Judge gave an ex tempore judgment. He stated that he had to decide whether Mrs. Brennan should be ordered to pay some or all of the Defendants’ costs, and if so, on what basis. He then stated,

“3.

Very often in probate cases an unsuccessful opponent to a will can have an order that the costs should be paid out of the estate, but those are cases in which there is no real antagonistic litigation. In the present case Mrs. Brennan’s case has been to attack the Will on four grounds: lack of due execution; lack of testamentary capacity; lack of knowledge and approval; and undue influence.

4.

In the end none of those attacks was successful and, in my judgment, only the third (knowledge and approval) had any chance of success. The litigation has been conducted aggressively on her side, partly in the form of correspondence, emails and such like from her husband. Of the emails I have seen, one of them I commented on in the judgment, another one I was shown today, which contains extremely aggressive, offensive and damaging attacks, and Mrs. Brennan, although she is a different person from her husband, she has not, until today, as I gather, withdrawn those damaging and unpleasant attacks.

5.

This is a case where I feel that at least some of the costs should be ordered to be borne by Mrs. Brennan and there are two sets of costs in question, because the first two defendants are nominated as the executors and they have in fact taken a very neutral role in the action, but they were obliged … to appear as parties … and put themselves at risk as to costs. They have in turn explained their position … to Mrs. Brennan that if she insists on making allegations essentially of dishonesty against those two parties, they will be seeking to make her liable in costs…

6.

Normally speaking, executors, especially executors of a will which is to be admitted to probate, will be entitled to their costs on the indemnity basis out of the estate, but in this case what I am proposing to do is to order Mrs. Brennan to pay their costs on the standard basis down to 22 August 2012 and to pay their costs on the indemnity basis from that date.”

Having dealt with the costs of the Executors, Mr. Herbert QC then turned to the position of the Third to Sixth Defendants. He set out the relevant history of the litigation between Mrs. Brennan and the Third to Sixth Defendants, and then said,

“17.

In deciding on the costs order to make in regard to the Defendants other than the Executors, I have to weigh two things in my mind. One is that this is a case in which, in my judgment, it is appropriate to make Mrs. Brennan pay the costs. I acknowledge that the issue of knowledge and approval could be regarded as a separate one… but in this case the way Mrs. Brennan has presented her claim makes it difficult to distinguish that issue from the rest…

18.

I think that ... taking everything together what I shall do with these costs as well is to divide the matter in terms of timing and to say that she will be ordered to pay costs on the standard basis until … 30 May 2012, and indemnity costs after that date …”

Mr. Herbert QC then concluded,

“19.

…Taking it all together, what I am going to do is to divide the costs in two different ways. For the [Executors] the cut-off date is 22 August 2012 and for the other defendants it is 30 May 2012, and in each case I am ordering the costs on the standard basis before the relevant date and [on] the indemnity basis after the relevant date. This is essentially to be paid in the first instance out of Mrs. Brennan’s legacy and I fear that that legacy will be insufficient to meet those costs in full, but there will, of course, have to be an assessment and it is possible that the costs will be reduced below that amount.

20.

I was asked to order an interim payment of £50,000 to [the Executors] to be made as an interim payment out of that legacy, and … I am prepared to go along with that figure.”

After the Deputy Judge had given that judgment on costs, there was a further dialogue as to the precise form of order, and the following exchange took place:

“THE DEPUTY JUDGE: …Is there anything else, Mrs. Brennan? Do you want some time to collect yourself?

MRS. BRENNAN: I don’t have the money to pay the bill and I’m worried about losing the home and I don’t think that’s what my father wished for. Or for his grandchildren. I haven’t even got enough equity to pay what you’re asking.

THE DEPUTY JUDGE: You are not telling me anything I did not already appreciate, Mrs. Brennan. The fact is that the way that … litigation works is …

MRS. BRENNAN: I understand. I’ve accepted your judgment. I’ve accepted it. I just am scared of losing my home.”

The Order was then drawn up and agreed between the respective Counsel for the Defendants, and was signed by the Deputy Judge before being sealed. The relevant provisions as regards costs were as follows:-

“2.

With regard to the First and Second Defendants’ costs of the Claim and Counterclaim:

(1)

The Claimant shall pay the First and Second Defendants’ costs of the Claim and Counterclaim. Such costs are to be subject to detailed assessment on the standard basis until 22 August 2012 and thereafter on the indemnity basis, if not agreed.

(2)

The Claimant shall pay the First and Second Defendants on account the sum of £50,000 within 28 days.

(3)

Such costs and such costs on account shall (if not previously paid) be payable out of the Claimant’s pecuniary legacy prior to the distribution of such legacy to her.

(4)

Insofar as the First and Second Defendant’ costs [are] not recovered by the First and Second Defendants from the Claimant (whether out of her pecuniary legacy or otherwise) those costs shall be raised and paid out of the Testator’s residuary estate, such costs to [be] subject to a detailed assessment on the indemnity basis if not agreed.”

3.

With regard to the Third to Sixth Defendants’ costs of the Claim and Counterclaim:

(1)

The Claimant shall pay the Third to Sixth Defendants’ costs of the Claim and Counterclaim. Such costs are to be subject to detailed assessment on the standard basis until 30 May 2012 and thereafter on the indemnity basis, if not agreed.

(2)

Such costs (if not previously paid) shall be payable out of the Claimant’s pecuniary legacy (or so much of it as may remain after any deduction pursuant to paragraph 2(3) above) prior to the distribution of such legacy to her.”

The issue concerning the Order arose when the parties were engaged in a detailed assessment of the Third to Sixth Defendants’ costs. Mrs. Brennan had challenged the amount of a number of the items of costs sought by the Third to Sixth Defendants, but had not suggested that there was any overarching limitation upon her liability to them. However, at a hearing on 5 September 2014 the Costs Judge (who did not have the transcript of the proceedings or the judgment of Mr. Herbert QC before him) raised the issue of whether paragraph 3(2) of the Order operated so as to limit the amount of the costs recoverable by the Third to Sixth Defendants from Mrs. Brennan to the amount remaining of her legacy after payment of the costs of the Executors. The Costs Judge declined to issue an interim costs certificate in favour of the Third to Sixth Defendants and indicated that they would have to have the Order clarified or varied before he would be prepared to do so.

After unsuccessfully seeking Mrs. Brennan’s consent to an amendment of the Order to make it clear that their entitlement to costs as against her was not limited to the amount of the legacy, on 5 December 2014 the Third to Sixth Defendants made an application to Mr. Herbert QC pursuant to CPR 40.12 which provides,

“(1)

The court may at any time correct an accidental slip or omission in a judgment or order.

(2)

A party may apply for a correction without notice.”

CPR 40.12 is supplemented by paragraph 4 of Practice Direction 40B as follows,

“4.1

Where a judgment or order contains an accidental slip or omission a party may apply for it to be corrected.

4.2

The application notice (which may be an informal document such as a letter) should describe the error and set out the correction required. An application may be dealt with without a hearing

(1)

where the applicant so requests,

(2)

with the consent of the parties, or

(3)

where the court does not consider that a hearing would be appropriate.

4.3

The judge may deal with the application without notice if the slip or omission is obvious or may direct notice of the application to be given to the other party or parties.

4.4

If the application is opposed it should, if practicable, be listed for hearing before the judge who gave the judgment or made the order.

4.5

The court has an inherent power to vary its own orders to make the meaning and intention of the court clear.”

On 11 December 2014 Mr. Herbert QC issued a note to the parties. He recited the various materials that he had considered, which included the evidence in support and a number of communications from Mrs. Brennan and her husband, including in particular an email to him from Mrs. Brennan dated 10 December 2014 which argued that the slip rule under CPR 40.12 was not applicable and that the Third to Sixth Defendants’ only available course was by way of an appeal to the Court of Appeal.

Mr. Herbert QC’s note dismissed a complaint by Mrs. Brennan’s husband, which he described as being,

“… written in characteristically intemperate language, accusing [the solicitors for the Third to Sixth Defendants] of fraud, dishonesty, serious breach of duty and abuse of position, by omitting reference [in the application] to an exchange of e-mails between counsel and my own clerk on 27 September 2013”

The Deputy Judge pointed out that the exchange of e-mails to which Mrs. Brennan’s husband had referred was well-known to him and had not been deliberately concealed.

The Deputy Judge’s note then continued,

“4.

Essentially the balance of the material provided by Mrs Brennan and her husband draws attention to paragraph 40.12.1 in the White Book. That note explains, with reference to a number of decided cases, the difference between unintended consequences of an order, which can be corrected under the slip rule, and substantive changes which cannot.

5.

It is evident from the transcript exhibited to Mrs Regan’s statement and from my judgment on costs that there was no intention on my part, or on the part of counsel, to restrict the recovery of costs to the amount of the pecuniary legacy. The transcript also shows that the absence of any such restriction was understood by Mrs Brennan herself.

6.

Paragraph 3(2) of the order was not deliberately framed in order to restrict the recovery of costs in that way, and the parenthesis ‘(if not previously paid)’ appears to contradict any such restriction. However, a Costs Master has regarded this paragraph as, at least arguably, limiting the recovery of costs in the way I have mentioned.

7.

If the paragraph does have that ambiguity, then it would be within the scope of rule 40.12 to remove it. It is true that the terms of the sub-paragraph were agreed by counsel, but that is no bar to an application of the slip rule if the terms of the order fail to express the intention of the parties and their counsel, as well as that of the court. It is not a question of altering the effect of the judgment of the court (which cannot be achieved under the slip rule) but of implementing it (which can).

8.

One way of removing the ambiguity would be to delete paragraph 3(2) altogether, but that might alter the effect of the order to some extent, at least in theory. In my judgment it would be right, consistently with the rule, simply to add the words ‘Without prejudice to sub-paragraph (1) above’ at the beginning of paragraph 3(2).

9.

If Mrs Brennan wishes to request an oral hearing to pursue her opposition to the application, or indeed if Russell-Cooke object to the wording which I propose, it may be that a hearing could be arranged next week. Otherwise I would be prepared to make an order in the terms I have indicated without a hearing.”

The Deputy Judge’s proposal that if Mrs. Brennan wished to pursue her opposition to an amendment of the Order she should do so at an oral hearing, prompted two very lengthy letters to the Deputy Judge from Mrs. Brennan dated 15 and 16 December 2014. These missives repeated the submission that the slip rule was inapplicable and that the Order should stand in its present form as the agreed intention of the parties; they asserted actual bias on the part of the Deputy Judge; and requested that Mr. Herbert QC recuse himself from hearing the application. This prompted the Deputy Judge to make an order on 18 December 2014 adjourning the matter to an oral hearing on a date to be fixed and giving directions for the filing of evidence and skeleton arguments, with liberty to Mrs. Brennan to apply for the directions to be varied.

The matter was then the subject of a listing hearing in April 2015 and fixed for a hearing in July. By that stage, however, Mr. Hebert QC had retired as a Deputy High Court Judge, with the result that the application came on for hearing before me.

At the hearing Mr. Harris submitted that the order was not, on its true interpretation, ambiguous, and that it has the meaning that Mr. Herbert QC indicated that he intended it to have, essentially for the reasons that he gave. Mr. Harris therefore said that there is no accidental slip in the Order and I do not need to have recourse to the slip rule to correct it. He adds that the only course that I might consider is perhaps to amend the Order using the inherent power referred to in CPR 40BPD para 4.5 to ensure that its existing meaning and intention is clear beyond any possible doubt. He further submitted that if (contrary to his primary submission) I were to take the view that the meaning of the Order differs from Mr. Herbert QC’s statement of what he intended to achieve, then it would be permissible to correct the Order under the slip rule so as to accord with Mr. Herbert QC’s stated intention.

Mrs. Brennan’s submissions are that, properly construed, paragraph 3(2) of the Order limits her liability for costs under paragraph 3(1) by prescribing that such costs are only to be paid from her legacy. Mrs. Brennan contends that this interpretation reflects (in particular) paragraphs 5 and 19 of the Deputy Judge’s costs judgment. She contends that in paragraph 5 Mr. Herbert QC only indicated that she was to bear “at least some of” the costs; and that in paragraph 19 he indicated that the costs should “in the first instance” come out of her legacy and noted that the consequence of his costs orders might be that the legacy would be exhausted, without going on to suggest a “second instance” or otherwise indicate that Mrs. Brennan might be personally liable for the balance. Mrs. Brennan further submits that the terms of the Order were agreed by counsel for the Third to Sixth Defendants, and that Mr. Herbert QC’s note amounts to impermissible second thoughts on his part. She submits that such second thoughts do not entitle a court to intervene by use of the slip rule, and that the only potential remedy of the Third to Sixth Defendants would be to apply for permission to appeal (considerably out of time).

I agree with Mr. Harris that the logical first step must be to interpret the Order so as to discover what the Deputy Judge would objectively have been understood to mean by the words which appear in the Order. If that is the same as the subjective intention that Mr. Herbert QC has indicated that he had when making the Order, then there is no error so as to potentially bring the slip rule into play. If, however, the objective meaning of the Order does not correspond with the stated intention of the Deputy Judge, then I will have to inquire further as to why that is, and whether it would be permissible to use the slip rule to amend the Order.

Like any other written instrument or document, a court order is to be interpreted in accordance with the principles that have been summarised in cases such as Mannai v Eagle Star [1997] AC 749, Investors Compensation Scheme v West Bromwich BS [1998] 1 WLR 896, Chartbrook Limited v Persimmon Homes [2009] 1 AC 1101 and Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900. The question is what a reasonable person having all the background knowledge which would have been available at the time to the maker of the document would have understood him to be using the language in the document to mean: see e.g. per Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101 at para 14.

The court performs that exercise in interpretation in the light of (i) the natural and ordinary meaning of the words in issue, (ii) any other relevant provisions of the document, (iii) the purpose of the clause in question and the document as a whole, (iv) the background facts and circumstances known or assumed by the maker of the document or by both of the contracting parties at the time that the document was executed, and (v) business common sense, but (vi) disregarding subjective evidence of intention: see per Lord Neuberger in Arnold v Britton [2015] 2 WLR 1593 at para 15.

I have summarised the relevant background to the Order above. I first note that there was never any suggestion in the submissions of counsel for the Third to Sixth Defendants that they were content to limit their recovery of costs to the amount of Mrs. Brennan’s pecuniary legacy. Instead, by their counsel, the Third to Sixth Defendants were critical of the manner in which Mrs. Brennan had conducted the case and sought payment of their costs to be assessed on the indemnity basis; they were well aware that the costs of the Executors (which they accepted had priority) would be likely to account for the majority of that legacy; and they indicated that “we will just have to do out best as to the balance”.

I next turn to the judgment of Mr. Herbert QC on costs, which I think must be the most relevant part of the background against which the Order falls to be interpreted. A reasonable person seeking to understand what the Order means would naturally inform himself of the terms of the judgment that preceded it.

I do not think that the opening sentence of paragraph 5 of the costs judgment can bear the weight that Mrs. Brennan seeks to place upon it. At that stage of his judgment, the Deputy Judge was simply setting out his view that this was not a case in which the order frequently made – namely that the unsuccessful opponent to a will should have her costs paid out of the estate – should apply. At that juncture, Mr. Herbert QC had not given any consideration as to the form of any adverse costs order he was proposing to make and his words were entirely neutral: “at least some” does not exclude “all”.

Consideration of the form of an adverse order was the subject of the next section of the judgment in which the Deputy Judge was critical of the conduct of the litigation by Mrs. Brennan. So far as the costs of the Third to Sixth Defendants were concerned, Mr. Herbert QC considered two points in making his decision in paragraph 17 – first, that “this is a case in which … it is appropriate to make Mrs. Brennan pay the costs”, and second, that “the issue of knowledge and approval could be regarded as a separate one” so as to justify an issue-based costs order. The first point indicated an intention to make Mrs. Brennan pay all of the costs of the Third to Sixth Defendants (i.e. “the costs”); the second point was a consideration which might have required Mrs. Brennan to pay only part of those costs. But neither point had anything to do with limiting recovery by the Third to Sixth Defendants to a payment from Mrs. Brennan’s legacy, and it is clear from the remainder of paragraph 17 that the Deputy Judge went on to reject the idea of an issue-based order.

In paragraph 18 of his costs judgment, the Deputy Judge considered the basis for assessment of the costs of the Third to Sixth Defendants, and made a time-based distinction as regards the basis of assessment. Again, he gave no indication that he was intending to limit the recovery of such costs by the Third to Sixth Defendants in any other way. Indeed, the very fact that the Deputy Judge thought it appropriate to make an order on the indemnity basis of assessment supports the conclusion that he did not mean to limit the recovery of costs by reference to the amount of the Mrs. Brennan’s legacy. Given the amount of Mrs. Brennan’s legacy (£100,000) and what the Deputy Judge had been told were the level of the costs of the Executors (£87,000) and the Third to Sixth Defendants (substantially more), the overwhelming likelihood was that the balance of the legacy after payment of the Executors’ costs would have been exhausted on either basis of assessment.

In paragraph 19 of the costs judgment, the Deputy Judge summarised his conclusions in respect of both sets of Defendants’ costs, and indicated that “This is essentially to be paid in the first instance out of Mrs. Brennan’s legacy”. The use of the word “This” was grammatically inaccurate, but in context I think it is clear that the Deputy Judge was referring to both sets of costs, and his reference to “in the first instance” was an indication that he intended to authorise the Executors to satisfy the costs orders in favour of the Defendants out of the funds in the estate which would otherwise have been paid to Mrs. Brennan in respect of her legacy before making a payment of the balance (if any) of those monies to Mrs. Brennan.

The Deputy Judge’s further comments in paragraph 19 that he feared that Mrs. Brennan’s legacy “would be insufficient to meet those costs in full” simply reflect what Mr. Herbert QC had been told as to the amount of the costs in question. His further comment that an assessment would have to take place and that “it is possible that the costs will be reduced below that amount”, is theoretically accurate, though rather unrealistic given the amounts claimed. On no view, however, did the Deputy Judge indicate that if the amount of assessed costs exceeded the amount of the legacy, the amount recoverable by the Defendants should be limited to the amount of the legacy. Had he intended that this would be the case, it would have been entirely natural for him to say so at this point in his judgment.

As part of the background to the Order, it is in my view also legitimate to have regard to the exchange between Mr. Herbert QC and Mrs. Brennan after the costs judgment had been given and prior to the finalisation of the Order. In my view it is apparent from the transcript of proceedings that Mrs. Brennan well understood that the costs orders that the Deputy Judge had decided to make would impose a liability upon her that was likely to extend beyond the amount of the legacy that was due to her under the will, and which might result in her other assets (such as her home) having to be sold to pay the bill. There is no other sensible basis upon which the remarks which Mrs. Brennan made as set out in paragraph 8 above can be understood. Mrs. Brennan submitted to me that she was essentially just expressing concern that she was not going to get her legacy of £100,000 and was concerned for the consequences generally, but that is simply not consistent with her specific comments that she hadn’t “got enough equity to pay what you’re asking” or that she was “scared of losing my home”.

More significant, however, is that faced with Mrs. Brennan’s obvious concerns, the Deputy Judge did not seek to correct her or reassure her that there was no possibility that she might lose her home because he intended that her liability for costs should be capped by the amount of her legacy. That would have been the obvious response for Mr. Herbert QC to have given at that juncture, but he made no such comment.

Taking these points together, I do not think that the “reasonable person having all the background knowledge which would have been available to the parties” at the time that the Order was drawn up and sealed could have had any doubt that the Deputy Judge intended and had decided that Mrs. Brennan would be personally liable for the entirety of the assessed costs of the Defendants, without any limitation on recovery of those costs by reference to the amount of her legacy.

It is against that background that I turn to the terms of the Order. There is no dispute as to the meaning of paragraph 2 of the Order, or that it correctly reflects the intentions of Mr. Herbert QC as regards the costs of the Executors.

Paragraph 3(1) of the Order makes Mrs. Brennan liable for the Third to Sixth Defendants’ costs and sets out the basis of assessment of those costs. That order for costs and Mrs. Brennan’s personal liability under it is not expressly limited or qualified in any way.

Paragraph 3(2) commences with the words “Such costs (if not previously paid)…”. I agree with Mr. Harris that the words “such costs” must be understood to refer to the entirety of the costs of the Third to Sixth Defendants as ordered to be paid in paragraph 3(1). I also agree that the words “if not previously paid” envisage the possibility that such costs might have been paid by Mrs. Brennan from another source before any question would arise as to whether they should be paid out of her pecuniary legacy. If the intention was that recovery by the Third to Sixth Defendants of their costs against Mrs. Brennan should be limited to payment from the balance of her legacy after payment of the costs of the Executors, these words make no sense. There would be no reason to suppose that Mrs. Brennan would make any payment of costs from her own pocket if she knew that the Defendants were limited to obtaining payment from the monies representing her legacy in the hands of the Executors.

Mrs. Brennan submitted that it was significant that there was no equivalent of paragraph 2(4) after paragraph 3(2) of the Order. Paragraph 2(4) makes express provision for the balance of the Executors’ costs to be paid out of the deceased’s residuary estate if they have not been recovered from Mrs. Brennan (whether out of her pecuniary legacy or otherwise). Mrs. Brennan suggests that the absence of an equivalent provision in paragraph 3 is an indication that there was to be no recovery of the balance of the costs of the Third to Sixth Defendants if the legacy proved inadequate.

I do not accept that submission. The purpose and structure of paragraphs 2 and 3 is materially different. Paragraphs 2(1) to 2(3) deal with the incidence of costs as between the Executors and Mrs. Brennan. Paragraphs 2(1) and 2(2) contain inter-parties costs orders, and paragraph 2(3) gives authority to the Executors – probably pursuant to the court’s inherent power to give directions as to the administration of estates – to recover their costs from monies in their hands in priority to paying a pecuniary legacy to Mrs. Brennan. The purpose of paragraph 2(4) is to make provision for the Executors’ costs in the event that the amount of the legacy proved inadequate and Mrs. Brennan failed to pay the balance. That can be seen from the reference in paragraph 2(4) to the costs of the Executors not being recovered “from [Mrs. Brennan] (whether out of her pecuniary legacy or otherwise)”. The pecuniary legacy having been (on this hypothesis) exhausted, paragraph 2(4) gives authority to the Executors to deduct such balance of their costs from the residuary estate that otherwise would be payable to the Third to Sixth Defendants.

The reason why no equivalent provision to paragraph 2(4) appears in paragraph 3 is simply because (for obvious reasons) the Third to Sixth Defendants did not seek to recover any part of their costs from the Executors. Hence there was no other source of funds from which the Third to Sixth Defendants could recover any outstanding balance of their costs in the event that Mrs. Brennan did not pay under paragraph 3(1) and the legacy had been exhausted under paragraph 3(2). There was thus no reason to say anything further in the Order.

Accordingly, I do not think that there is any ambiguity in the terms of the Order when interpreted against the relevant background. The meaning of the Order is perfectly clear and I venture to suggest that if the Costs Judge had had the benefit of all of the background materials before him, as I have had, he would not have expressed the doubts that he did. The meaning of the Order is also entirely consistent with Mr. Herbert QC’s note as to his intentions in making it.

I therefore do not need to have resort to the slip rule (CPR 40.12) to correct any mistake or omission in the Order. I should say, however, that if there had been some real ambiguity in the terms of the Order, in complete agreement with Mr. Herbert QC, I would unhesitatingly have held that it would have been appropriate to use the slip rule to give effect to the intention that Mr. Herbert QC indicates that he had.

As the Court of Appeal pointed out in Bristol-Myers Squibb v Baker Norton (No.2) [2001] RPC 45 at paras 22-25, referring to the earlier decisions in Adam & Harvey v International Maritime Supplies [1967] 1 WLR 445 and Mutual Shipping Corporation v Bayshore Shipping [1985] 1 Lloyd’s LR 189, there is a clear distinction between (on the one hand) amending an order of the court so as to give true effect to a court’s first thoughts or intentions; and (on the other hand) a court having second thoughts about the case and seeking “as a natural form of self-exculpation” to suggest that there was an “accidental” mistake in the order which should be corrected. The former is capable of being dealt with under the slip rule: the latter is not, and can only be corrected (if at all) by an appellate court.

In this case, having seen the transcripts of the hearing and costs judgment, I have no doubt that Mr. Herbert QC’s note accurately and correctly records his original thoughts and intentions, and this is not a case of him having second thoughts.

I would add that I see nothing whatsoever inappropriate in the way in which Mr. Herbert QC dealt with this application. Far from being in any way barred from dealing with the application, commonsense and the terms of CPR 40BPD para 4 dictate that, if practicable, any application under the slip rule should be referred to the judge who made the order.

Moreover, Mr. Herbert QC’s note circulated to the parties on 11 December 2014 did not indicate bias on the part of Mr. Herbert QC. It was an entirely sensible and cost-effective means of communicating to the parties the Deputy Judge’s intentions when he made the Order, and to indicate his provisional view of the application in a reasoned way. He thereby made it possible for the parties, and in particular Mrs. Brennan, to consider whether to pursue the matter further or to avoid the expenditure of further time and costs.

It remains for me to determine whether I should exercise the inherent power referred to in CPR 40BPD 4.5 to amend the terms of the Order to make its meaning clear beyond argument. Although very tempted to leave the terms of the Order as they are, especially as I have given this judgment explaining what the Order means, I think on balance that I should put matters beyond doubt on the face of the Order. I think that can best be done by adding the words “Without limiting the amount of the Claimant’s liability for costs pursuant to sub-paragraph (1) above” at the beginning of paragraph 3(2).

As a final matter, I should record that after reserving my judgment, on 28 July 2015 I received an email communication from Mrs. Brennan raising a number of points – some old and some new – in support of her position. I have read that document carefully but do not think that it advances the case. Indeed, one of the main points made seems to be that Mr. Herbert QC had no power to order any costs to be paid from amounts that would otherwise be payable to Mrs. Brennan in respect of her legacy. As I have indicated, I think that such a jurisdiction probably does exist in the inherent power of the court to give directions as to the administration of an estate. But even if that were not so, I do not think that this point would assist Mrs. Brennan at all. If Mr. Herbert QC had no power to order costs to be paid from the monies that would otherwise be due to be paid to Mrs. Brennan on account of her legacy, then I see no reason why there should be any limitation upon her personal liability in costs by reference to the amount of that legacy.

Accordingly, I hold that the amount of Mrs. Brennan’s personal liability for the costs of the Third to Sixth Defendants under paragraph 3(1) of the Order is not limited by reference to the amount of her pecuniary legacy; and I shall further order pursuant to the inherent power referred to in CPR 40BPD 4.5 that the Order be amended to add the words “Without limiting the amount of the Claimant’s liability for costs pursuant to sub-paragraph (1) above” at the start of paragraph 3(2).