Richard Dahlman v Beverly Allison Oxley & Anor

DEPUTY MASTER SCHER:

1. I am now going to give an extempore judgment in claim PT-2025-000357. The Applicant is Richard Dahlman. The First Respondent is Beverly Allyson Oxley; the Second Respondents are the partners in the firm of Palmers Solicitors Kingston Upon Thames LLP.

2. This hearing concerns the costs of an application for pre-action disclosure. The contemplated litigation concerns the will of Richard Hedley Wilby, whom I will call “the Deceased”.

3. By way of background, the Deceased passed away on 1 July 2024. The Applicant is his son, the First Respondent is his niece, and the Second Respondent are executors of his estate under a challenged will.

4. The Deceased was born in 1920. He married twice. There are children of his first marriage, but they do not feature in this narrative. The Deceased had a sister, who had a daughter, Beverly Oxley, the Respondent, who lives in France. In 1965, the Deceased began cohabiting with Ethel Birgitta, known as “Bridget”. Their relationship lasted until her death, in 2024. They had a son, Richard, the Applicant, who lives in Canada. The Deceased married Bridget only in 2019.

5. In 2022, it seems the Deceased and Bridget prepared mirror wills. According to the Applicant – and I make no findings about this – the First Respondent made contact with the Deceased in early 2023. They became close, including when the Respondent acted as his carer, during Bridget’s illness, in January 2024.

6. On 19 April 2024, the Deceased executed another will. The Applicant says that the next day, the Respondent arranged for the Deceased to be put in a care home, and she returned to France. Again, I make no findings about this.

7. There are various circumstances about which I make no findings, which give the Applicant cause for concern about the 2024 will. The Applicant has entered a caveat and says it will maintain it until it is clear that the 2024 will is valid.

8. So much for the factual background. I now turn to the correspondence.

9. On 12 July 2024, the Applicant requested a copy of the 2024 will from the Second Respondent, and then instructed solicitors to ask for it. On 31 July 2024, a copy was provided.

10. On 15 August 2024, a Larke v Nugus request was made, articulating concerns about the 2024 will, and referring to the Law Society guidance. On 26 September 2024, the Second Respondent said that it needed to take instructions.

11. There were two chasers, and on 9 January 2025, Kinglsey Napley (for the Applicant) said that if the will was not provided, they would consider making an application for pre-action disclosure.

12. On 25 March 2025, Kinglsey Napley said that they were going to issue an application and would seek their costs. That letter is at page 68 of the bundle. At the bottom of page 68, the statement was made: “The costs of these applications will be sought from your firm / your client at the appropriate time, particularly in light of your conduct in refusing to respond to reasonable requests for information.”

13. On 25 March, the Second Respondent replied, promising a Larke v Nugus response the following week.

14. On 27 March 2025, Kinglsey Napley said that if the will file was provided, there would be no need to issue the application.

15. On 10 April 2025, an application for pre-action disclosure was issued. The Respondents rely on a passage in the letter, accompanying that application, saying: “We repeat that our client would prefer to avoid the time and cost of a contended hearing and that it is still open to you to agree to disclosure (sic) the will file voluntarily. Of course, if you remain unwilling to do so we will proceed with the application and seek our clients’ costs from you at the appropriate time.”

16. What Mr Francis, for the Respondents, calls the “representation” was repeated twice more, in letters to Palmers Solicitors and to Mrs Oxley, in the following days. On 16 April 2025, Laura Phillips of Kingsley Napley emailed Palmers again and made that so-called representation in slightly different words. She said: “If your client will agree to the disclosure of the will file, it will not be necessary for the parties to attend a hearing (which is the sole purpose of our client’s application). If, however, you contest that our client should be entitled to the will file, we look forward to receiving your position at your earliest convenience. For the avoidance of doubt, in the event that our client is successful, we will be seeking our client’s costs for the application from your firm/Mrs Oxley personally at the appropriate time. These costs are not recoverable from the deceased’s estate.”

17. On 25 April 2025, the First Respondent filed a witness statement in response to the application, and on 9 May 2025, the will file was produced without a Larke v Nugus witness statement.

18. I heard detailed submissions from Mr East, for the Applicant, and Mr Francis, for the Respondents. I am grateful to both counsel for their submissions, which I have considered, even if I do not refer to everything in detail.

19. Mr East took me to Larke v Nugus , itself, which was a Court of Appeal case which Mr East said mandated that solicitors and executors should cooperate with such requests and provide full and frank information in relation to them. Certainly, it is common practice for Larke v Nugus requests to be made and responded to immediately.

20. There is a Law Society guidance, which I was taken to as well at page 87 of the Claimant’s authorities bundle. This sets out what to do when a Larke v Nugus request is received.

21. There is a difference between a duty and best practice. The Law Society does say, “You are under no duty to comply with the request”, and on my reading of Larke v Nugus , it is ambiguous as to whether an actual duty to respond arises or not. There is certainly a duty, as The Law Society says, to make every effort to avoid potentially costly litigation.

22. I do not need to make a finding as to whether there is a duty or not. I note that the parties disagreed about it. The Law Society says the simplest way to comply is by copying the will file and providing a witness statement too.

23. Mr East took me also to a case of Addison v Niaz [2024] EWHC 3124 (Fam) , which was heard by Chief Master Shuman. Mr East said that that sets the bar for compliance very high. In that case, a solicitor refused to answer questions, and a costs order was made against them. It is not precisely a Larke v Nugus situation, because that was a case where a solicitor was being brought before the Court for questioning. But Mr East relies on it as analogous .

24. I note also the case of SES Contracting v UK Coal [2007] 5 Costs LR 758 (CA), which Mr Francis took me to. This case deals with the underlying rationale for the rule in Rule 46.1 (which I will come back to). That is a recognition that a private person who is not a party to litigation which brings with it an obligation of disclosure is entitled to maintain the privacy of his papers, unless sufficient grounds can be shown for overriding it. The person seeking to invade that privacy must justify doing so.

25. I will come back to costs, in a moment.

26. There are two key disputes between the parties: one is the costs of the application for pre-action disclosure, which (as I say) was eventually complied with. Each party says that they should have their costs, and I will come back to that, in a moment. The other question is whether the Respondents should be entitled to recover their costs from the estate.

27. Mr East took me to two more points on that question. The first was in the textbook, Theobald on Wills , at paragraph 15-011. The executor is entitled to recover costs from the estate in many circumstances, but not when they act unreasonably.

28. I was also taken to Practice Direction 46, paragraph 1.1, which provides: “1.1 A trustee or personal representative is entitled to an indemnity out of the relevant trust fund or estate for costs properly incurred. Whether the costs were properly incurred depends on all the circumstances of the case including whether the trustee or personal representative… (a) obtained directions from the court before bringing or defending the proceedings; (b) acted in the interests of the fund or estate or in substance for a benefit other than that of the estate, including the trustee’s own; and (c) acted in some way unreasonably in bringing or defending, or in the conduct of, the proceedings.”

29. So again here, I need to look at whether the executor has acted unreasonably in these proceedings, to determine whether they should be paid their costs from the estate.

30. Mr Francis took me through the correspondence in detail, and I have already been through that. I focused on what he called the “representations”. He says that resiling from these representations is conduct which should be reflected in the costs order which I am asked to make.

31. He analysed the so-called representation, which I will repeat: “We repeat that our client would prefer to avoid the time and cost of a contended hearing and that it is still open to you to agree to disclosure (sic) the will file voluntarily. Of course, if you remain unwilling to do so we will proceed with the application and seek our clients’ costs from you at the appropriate time.”

32. I agree with Mr Francis, that there are clearly two options presented here: the first option was agreeing to provide the will file, in which case there is no costs; or continuing with the application, in which case costs would be demanded. I do agree with Mr Francis’ interpretation of that letter.

33. Mr East valiantly tried to find ambiguity in it. But in my judgment, it is clear that costs would not be sought if the will file was provided.

34. The second representation, slightly later (on page 138) – which I will not read out again – is indeed slightly more ambiguous. But the one on page 133 is clear to me. It took the Respondents some time to comply and in that time, they also provided a witness statement of the First Respondent.

35. Mr Francis said that it was clear from correspondence that Palmers took the representations at face value and gave voluntary disclosure of the will file. He says, and I agree, that to allow any party to go back on representations would undermine trust and confidence on which the promotion of resolution of disputes depends. He also said that this affects the wider administration of justice.

36. It is agreed that the test I need to apply is Rule 46.1, to which I will now turn. There is no dispute that it applies in this application.

37. 46.1(2) provides: “(2) The general rule is that the court will award the person against whom the order is sought that person’s costs – (a) of the application; and (b) of complying with any order made on the application.”

38. So the Respondent to the application for pre-action disclosure will normally be given their costs of the application and of complying with it.

39. Rule 46.1(3) provides: “(3) The court may however make a different order, having regard to all the circumstances, including – (a) the extent to which it was reasonable for the person against whom the order was sought to oppose the application; and (b) whether the parties to the application have complied with any relevant pre-action protocol.”

40. I have considered this carefully, and note in particular the following factors: (1) the expectation from Larke v Nugus and from The Law Society, that the will file will be provided in any case of suspicion, which includes this. (2) The unexplained failure of the Respondents to provide the will file for nine months after the request. (3) The fact that it took an application for pre-action disclosure to cause the Respondents to provide the file. (4) The clear representation by the Applicant that they would prefer to avoid the time and costs of a contended hearing, that it was still open to the Respondents to agree to disclose the will file voluntarily, and that if they remained unwilling to do so, they would proceed with the application and seek their client’s costs at an appropriate time. (5) The need for parties in litigation to trust each other’s positions, as put in correspondence.

41. I have taken all of those circumstances into account, and I am going to make a different order to the general order in Rule 46.1.

42. The Larke v Nugus expectation, and the unexplained failure to produce the will file, swings the pendulum towards giving the Applicant their costs. But the representation that they would not seek costs swings it back. I have thought carefully about everything I have heard today, and I have decided to make no order as to costs.

43. For the reasons I have said, I find that it was unreasonable for the Respondents to have resisted the Larke v Nugus request for so long and to have delayed and complied with the application, and for that reason the costs are not going to come out of the estate. (Hearing continued – see separate transcript) - - - - - - - - - - - - - - - (This Judgment has been approved by Deputy Master Scher.) Digital Transcription by Marten Walsh Cherer Ltd 2 nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP Telephone No: 020 7067 2900 DX: 410 LDE Email: [email protected] Web: www.martenwalshcherer.com