Ask to see the Grant of Probate before proceedings are issued or face a wasted costs claim.

Rafferty -v- Royal Wolverhampton NHS Trust shows the importance of ensuring a grant of probate is held and the possible consequences of discontinued proceedings and a claim for wasted costs.

In Rafferty -v- Royal Wolverhampton NHS Trust, the defendant made an application for wasted costs. The respondent solicitors had acted on behalf of the claimant who had issued a claim, purporting to be the executor of her father’s estate. The Particulars of Claim pleaded that the claimant was the “executor” and then, after amendment, the “administrator” of the deceased’s estate. In fact, she was neither as probate had not been granted.  The action was discontinued. The application was successful.

The defendant made an application for an order for wasted costs against the claimant’s solicitors.

  1. The assertion in the Particulars of Claim, in its original version, appears to have been untrue. It was verified, as I have indicated, by an unqualified statement of truth by the solicitor.  The amended Particulars of Claim makes a different assertion.  It was verified by a statement of truth given by the Claimant but was clearly a document drafted by her solicitors.  It asserts that Letters of Administration had been granted.  There is no plausible basis, it seems to me, for that alternative proposition being advanced at that stage, not least because the chronology prepared by the Claimant’s solicitor indicates that as at that date the Claimant had told her that she was still looking for the Grant of Probate.
  2. This is an application for wasted costs. The burden is a high one as Mr Khan says, and costs orders of this type are not to be made routinely or lightly.  I have had regard to the authority to which I have been referred and I bear in mind that the Claimant herself has not waived privilege, and that I have not seen all of the communications which had passed between her and her solicitors.  However, I do not consider that that difficulty impacts adversely on the ability of the Court today to identify the significant facts and the significant chronology.
  3. I am satisfied in this case that the conduct of the Claimant’s solicitors meets the threshold for the exercise of discretion such that a wasted costs order should be made. It seems to me that the Claimant’s solicitors, although under pressure of time to issue the claim, did not need to serve it; indeed they had specifically requested that the Court return the sealed Claim Form to them, and did not serve until March the following year when the amended Claim Form was submitted, and the Particulars of Claim were filed.
  4. It seems to me that the solicitors should, by that date, have been able to establish conclusively the true position, which is that there was no Grant of Probate and there were no Letters of Administration. That could have been done by the simple expedient of carrying out a search online at the Probate Office, or making other enquiries of the local Probate Office or indeed by the Claimant herself confirming the true position on the basis of enquiries. The letter from A J Law does not indicate that a Grant of Probate had been obtained, simply that instructions had been given for one to be produced.
  5. I find it is inexplicable that the Claimant’s solicitors would not have taken that elementary step, and I conclude that it is negligent on their part not to have verified or sought to verify effectively what the Claimant had told them.
  6. Eventually they did, in August 2021. There is no explanation and no good reason why the search should have been delayed until August 2021 when it could have been performed in October 2019.
  7. It seems to me that this is more than simply a question of negligence; it goes beyond that. The conduct of the Claimant’s solicitors in continuing to prosecute proceedings on behalf of the Claimant when the Claimant had no standing whatsoever to bring those proceedings takes it into the realm of an abuse of process.
  8. The position is made worse by the filing of the amended Particulars of Claim in circumstances where the pleaded case is clearly inconsistent with the position as the Claimant’s solicitor’s chronology indicates that the Claimant had believed it to be.
  9. I am satisfied that the Defendant has incurred wholly unnecessary costs in defending this claim, a claim which the Claimant never had standing to bring, and which the Claimant’s solicitors should have identified as such at a very early stage. In all those circumstances I conclude that it is just to order the Claimant’s solicitors to compensate the applicant for the costs which have been incurred by the Defendant.

How can PIC help?

The case demonstrates the importance of ensuring a grant of probate is held before issuing proceedings. It outlines the importance of accurate pleadings and how if they are incorrect, consequences such as an application for wasted costs could be made.


Marc Hopkins, Trainee Legal Costs Consultant