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Green v Astor & Ors [2013] EWHC 1857 (Ch) - 28/06/13


Judgment concerning an administrator's entitlement to costs in Part 64 proceedings.

Held: Where a trustee or beneficiary makes an application concerning a question of construction or of administration which is necessary for the benefit of the trust, the costs are paid out of the estate. Where the application procedure is used in an action that strictly falls within the description of litigation, the general rule that the unsuccessful party bears the costs applies. (Re Buckton [1907] 2 Ch 406). Where unreasonable conduct by a beneficiary is responsible for generating substantial costs on the part of a trustee or personal representative as regards an application to the court, it is appropriate that the burden of those costs be borne by that beneficiary and not fall on the trust or estate.

The present case was not an ordinary application for directions but had the character of hostile litigation. Applying a broad brush approach to issue-based apportionment, the administrator was liable for one of the three heads of relief (15 per cent) and the beneficiary for the remaining two (85 per cent). The court noted that the costs claimed were extraordinarily high and would require careful scrutiny by the costs judge.