Many contentious probate cases are fought between members of the same family, and emotions can run extremely high. There are sometimes allegations that one member of the family is being controlled or manipulated by others. I acted in a case last year which involved an adult son (my client) litigating against his mother. My client felt that several of his siblings were driving the litigation - pushing his mother to continue with the case even when she may have preferred to compromise. Is there any comeback for this type of behaviour?
s51 of the Senior Courts Act 1981 allows the court to make a non-party costs order (an order that someone who is neither the Claimant or Defendant pay the costs). These orders are unusual but where they are made it is normally against someone who finances or manages the litigation, has a financial interest in the outcome, is the cause of the litigation or party to closely related or group litigation.
The case of Jobanputra and Joban v Modi  EWCA Civ 1046 involved an application for a costs order against a solicitor. The underlying case was about the validity of a will - Mrs Jobanputra sought to prove a will dated 2001 and Mr Modi a will dated 2003. There was a one day hearing at which the 2003 will was held to be invalid (appeals against that judgment were unsuccessful).
In order for a will to be valid, it has to be signed by the testator in front of two witnesses. The 2003 will had apparently been witnessed by Mr Robinson, a solicitor and Mrs Rayner, a legal secretary. Mr Robinson had also certified the 2003 will as a true copy on 9 October 2003 (this should have read 2008).
Mrs Rayner said that her signature was a forgery. In January 2009 Mr Robinson confirmed that the signatures on the will and on the certification were his. By February (in light of the evidence given by Mrs Rayner) he said that he could not be 100% sure that the signatures were his, and a few days later said that he had been tricked into signing the document.
In subsequent proceedings at the Solicitor's Disciplinary Tribunal, Mr Robinson admitted that he had provided misleading information in respect of the 2003 (by certifying it). No decision was made about his signature on the 2003 will and no finding of dishonesty was made.
Given the strong evidence of Mrs Rayner, it was clear that the 2003 will could not be valid. Judgment was given without the judge looking at whether Mr Robinson's signature was valid or not.
Ms Jobanputra unsuccessfully sought a third party costs order against Mr Robinson.
The Court of Appeal found that Mr Robinson had not caused the costs to be incurred - which is usually required where a non-party costs order is to be made. Mr Robinson had provided misleading information prior to the litigation starting, but had not taken any further part in the case. The Court of Appeal was not prepared to punish a solicitor in his position - partly because this would lead to a new category of non-party costs orders where a solicitor who has the chance to make a witness statement to help someone in litigation does not do so.
Mrs Jobanputra argued that Mr Robinson should have said at an earlier stage that the signature on the 2003 will was not his and that he had been wrong to certify it. The Court of Appeal found that this would not have made any difference to the litigation – Mr Modi was clearly determined to pursue it even though the will could not be valid because Mrs Rayner had not signed.
This decision is a relief to solicitors who may be asked to give evidence (particularly in respect of contested wills, where the will drafter is often asked to give evidence or where they may well have witnessed the will). Solicitors must however, be extremely careful to ensure that the information they give at any time is correct.