Firm ordered to pay wasted costs for “inexplicable” error

Probate: There was no grant after all

A law firm which started proceedings when its client did not have standing to bring them has been ordered to pay wasted costs because it failed to check this.

Deputy District Judge Edden in Wolverhampton County Court said the conduct of Cheadle Solicitors went beyond negligence and “into the realm of an abuse of process”.

According to the ruling from last year but only just put in the public domain, the law firm was instructed by Tracey Rafferty in October 2019 to bring a negligence claim against the Royal Wolverhampton NHS Trust following her father’s death.

The client initially said there was a will and that a grant of probate had been obtained. With limitation soon to expire, the firm lodged the claim form.

While the particulars of claim filed four months later indicated there was a grant of probate, an amended version the following year said there had been a grant of letters of administration. But Ms Rafferty then revealed in response to part 18 questions that she had only applied for it.

The claim was discontinued in November 2021 – not having a grant of probate or letters was an “irredeemable flaw” in the proceedings, the judge said – and the defendant sought wasted costs against Cheadle Solicitors.

The assertion in the original particulars of claim that there was a grant of probate was verified by an unqualified statement of truth by one of its solicitors.

The amended particulars of claim’s reference to the grant of letters was verified by a statement of truth given by the claimant, “but was clearly a document drafted by her solicitors”, DDJ Edden said.

The case cleared the high hurdle for a wasted costs order, he continued.

“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.

“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…

“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.”

There was “no explanation and no good reason” why the firm only got round to doing this in August 2020, the judge went on.

“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.

“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.”

DDJ Edden said the defendant trust incurred “wholly unnecessary costs” in defending the claim and it was “just” to order Cheadle Solicitors to compensate it for them.

At the time of a case and costs management conference in July 2021, the claimant’s incurred costs were put at £37,000 and the defendant’s at £11,000. DDJ Edden said both costs budgets were approved “including, I have to say, an adverse comment regarding the claimant’s incurred costs”.

We have approached Cheadle Solicitors for comment.

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