Paul Ivey & Ors v Susan Marie Lythgoe & Anor

Introduction

1. This is my judgment on the claimants’ application made by notice dated 23 July 2025 for various orders relating to the respondent. The respondent carries on a will-writing business. It is not a party to the underlying claim. That underlying claim relates to two wills, at least one of which was prepared by the respondent, for the deceased, David Ivey, in 1994 and 2009. The claim is to revoke letters of administration, alternatively to rectify one or other of the wills. It was made by claim form under Part 8 of the CPR, issued on 20 May 2024 against two defendants, both of whom have acknowledged service. The particulars of claim were attached to the claim form, and are also dated 20 May 2024.

2. The first defendant, being named as a beneficiary under the 2009 will, obtained a grant of administration with that will annexed on 23 November 2023. The second defendant was named as a beneficiary under the 1994 will, but not the 2009 will. The claimants would be entitled to the estate of the deceased on intestacy. They say that indeed he did die intestate, on the grounds that (i) he neither knew nor approved of the contents of the 2009 will, and (ii) the only surviving copy of the 1993 will is not executed, so it is assumed that it never was. But they also claim under their late father, who was named as a beneficiary under the 1994 will, but not under the 2009 will. They say that, if the 1994 will is valid, it should be rectified so as to show their father benefiting to a greater extent than there written, but that, if the 2009 will is valid, then it too should be rectified so as to show their father benefiting in the same way as under the 1994 will (as rectified).

3. In order to make all these interlocking claims intelligible, I need to set out some brief family details. George Ivey and his wife, both now long deceased, had three sons, Russell, Gerald and David. Russell died in 2005, leaving four children, the claimants in the claim. Gerald died in 2020 without issue. Gerald’s wife Jean died in 2021. David died in 2023, unmarried and without issue. George Ivey had a brother, whose name is not given in the papers. This brother had two daughters, the first defendant and Nolen (who died in 2017, without issue). So, the claimants are the deceased’s (only) nephews and niece, whereas the first defendant is his surviving first cousin. Therefore, on David’s intestacy the claimants would take his estate to the exclusion of the first defendant.

4. As I have said, the first defendant has filed an acknowledgement of service. She contests the claim, and has also filed a witness statement. The second defendant’s acknowledgement of service says “I do not need to be in the claim unless the 2009 will is deemed invalid”. She took no part in the hearing before me. She wrote a letter to the claimant’s solicitors dated 22 August 2025, saying that she was not a claimant or a beneficiary and that the testator didn’t speak to her about the wills and she knew nothing about them. She concluded her letter by saying “I’ve got nothing to say about the wills.” The wills

5. The 1994 will was prepared by a will-writing company called PEP Consultancy Limited. The claimants do not know whether this will was ever executed. The only copy available is, as I have said, unexecuted. That will as drafted by clause 5(c) gave the residue of the testator’s estate in equal shares to Gerald, Russell and the second defendant, who was in an intimate personal relationship with the testator at the time of that will. That subclause contained a substitutionary gift over at the end, in case any of the three predeceased the testator, for a surviving spouse or child who should survive the testator. The claimants say that the instructions given by the testator for that will say that the intended gift for the second defendant was not an equal share with Gerald and Russell. Instead, they say that the instructions show that 85% of the residue should go to Gerald and Russell equally, and only 15% to the second defendant.

6. The 2009 will was prepared by the respondent, Trust Inheritance Limited, also will writers. It is asserted that this company is related in some way (whether by beneficial ownership, personnel involved, or in some other way) to PEP Consultancy Ltd. The claimants say that the testator’s instructions to Trust Inheritance Limited were given by the testator in a letter of 28 April 2009. This letter, which was handwritten, said as follows (spelling as in original): “I would like to change my will regarding Janice Mary Piper and familey. Please remove them from my will. Then will you put, Susan Marie Lythgoe and Nolan Daphinie Gay in there Place. Addresses enclosed.” However, the 2009 will removed not only the second defendant, but also Gerald and Russell. The claimants say that the respondent misunderstood the testator’s instructions concerning “Janice Mary Piper and familey”. They say that that was a reference to the second defendant and the gift over to any spouse or children of hers. They say that the respondent mistakenly struck out the gifts to his own family, namely his brothers Gerald and Russell and their spouses and issue, and that the testator did not notice that the wrong change had been made. Negligence proceedings

7. In addition to the present probate and rectification proceedings in the High Court, the claimants issued a separate claim against the respondent, under CPR Part 7. The claim form is dated 15 May 2024, but appears to have been issued by the County Court at Truro only on 6 June 2024. The claim is one for negligence in failing to make wills reflecting the deceased’s instructions, and so causing the claimants’ loss and damage. This loss and damage is stated to be both the costs of the High Court proceedings and the loss of the intended gifts under the 2009 will and/or the 1994 will. However, the negligence proceedings (and in particular the particulars of claim) have not yet been served on the respondent. So, the respondent does not yet know exactly how the claimants’ case against it is put. This application

8. The current application seeks: “An Order that Trust Inheritance Limited are joined as a costs-only party to the will rectification claim or that the negligence claim issued against them and the claim number L53YX784 in the Truro County Court be joined with these proceedings making Trust Inheritance Limited a party to the entire conjoined proceedings.” The court has power to consolidate proceedings under CPR rule 3.1(2)(h), and to try two or more claims on the same occasion (CPR rule 3.1(2)(i)). However, the notion of “conjoined” proceedings is not known to the CPR. I have therefore treated the alternative part of this application as one for consolidation of the two sets of proceedings.

9. The evidence relied upon by the claimants is set out in box 10 of the application notice. That evidence does not deal with the primary claim that the testator died intestate, but it does explain how the alternative claims for rectification arise. It submits that the rectification claims arise from the negligence of the respondent, and that it is just and reasonable for the respondent to bear the costs associated with those claims. It refers to a mediation arranged by the claimants and the first defendant to seek to resolve both the probate and the rectification claims, and seeks (i) an order joining the respondent to these proceedings for costs purposes only, and (ii) an order requiring the respondent to attend and take part in the mediation. At the hearing I was told that the mediation had already been arranged to take place on 17 October 2025, then about six weeks ahead.

10. At the end of the hearing on 4 September 2025, I did not give an extempore judgment, as I wished to think further about the case. I said that I would give my decision as soon as I could, probably early in the following week, with written reasons to follow. On Tuesday 9 September I informed the parties that I had decided to consolidate the two sets of proceedings, to order the claimants to file and serve particulars of claim in the negligence proceedings by 4 pm on 17 September 2025, thereafter to stay the proceedings pending the mediation on 17 October 2025, and to order the respondent to attend and participate in that mediation. This judgment contains my reasons for those decisions. Law Non-party costs orders

11. The jurisdiction to add a party to proceedings for costs-only purposes arises in this way. The court has power to make a costs order against a non-party, under section 51(3) of the Senior Courts Act 1981 , as interpreted by the House of Lords in Aiden Shipping Co v Interbulk Ltd [1986] AC 965 , and many subsequent decisions. But the jurisdiction to be exercised under section 51 is summary in nature, which means that it is not always suitable to be exercised.

12. In Deutsche Bank AG v Sebastian Holdings Inc [2016] EWCA Civ 23 , the bank was successful in litigation against a Turks and Caicos Islands company. It sought a non-party costs order against the sole shareholder and director of the company. The trial judge made the order, and the Court of Appeal affirmed his decision. Moore-Bick LJ, giving the judgment of the court (himself, Lewison and Simon LJJ) said: “21. … When an order for costs is sought against a third party, the critical factor in each case is the nature and degree of his connection with the proceedings, since that will ultimately determine whether it is appropriate to adopt a summary procedure of the kind envisaged in the authorities …

22. … an application under section 51 does not involve the assertion of a cause of action; it is a request for the court to exercise a statutory discretion in relation to the costs of proceedings before it. Section 51 is now the source of the court's discretion to determine who shall bear the costs of proceedings, whether they are parties to the proceedings or third parties. In principle, therefore, one would expect the procedure in each case to be substantially the same and the order to reflect broadly similar matters, such as the conduct of the proceedings and the nature of the party's or third party's involvement. In our view there is a clear distinction to be drawn between the process by which the court makes an order for costs at the conclusion of a trial, whether that order involves the parties alone or one or more persons who are not parties, and separate proceedings against a third party consequent upon the outcome of the trial. In the former case, the ordinary rules of evidence do not apply, precisely because the person against whom an order for costs is sought has had a sufficiently close connection with the proceedings to justify the court's treating him as if he were a party.

23. At an early stage in his opening [counsel for the applicant] identified a number of facts which, he submitted, [the non-party] could not, or had not attempted to, challenge and which were sufficient to establish that he was so closely involved in the litigation that there was no injustice in adopting a summary procedure for dealing with the Bank's application and holding him bound by the findings of fact made by the judge in the main action … [ … ]

26. In our view, the facts relied on by [counsel for the applicant] in this case are not seriously open to challenge …

27. In those circumstances it is difficult to see on what basis it could be said that it was unjust in principle to adopt a summary procedure of the kind envisaged in Symphony v Hodgson or for the judge to exercise his discretion on the basis of his findings of fact in the main action. We therefore agree with the judge that the court is not concerned in this case with the scope or application of the rules of evidence which would be applicable if this were an independent claim brought against an unrelated third party … ”

13. Where a party to litigation wishes to make an application for a non-party costs order, it must first join the non-party for the purposes of costs. CPR rule 46.2 relevantly provides: “(1) Where the court is considering whether to exercise its power under section 51 of the Senior Courts Act 1981 (costs are in the discretion of the court) to make a costs order in favour of or against a person who is not a party to proceedings, that person must – (a) be added as a party to the proceedings for the purposes of costs only; and (b) be given a reasonable opportunity to attend a hearing at which the court will consider the matter further.”

14. The power of the court to add a party to existing proceedings is contained in CPR rule 19.2(2), which provides: “(2) The court may order a person to be added as a new party if – (a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or (b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.” Compulsory mediation

15. The jurisdiction of the court to make an order requiring a party to attend and take part in the mediation (or other alternative dispute resolution), despite the then absence of a specific rule in the CPR, was clearly established by the decision of the Court of Appeal in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 . This led to the formulation and insertion in the CPR in October 2024 of an express power to that effect, in CPR rule 3.1(2)(o): “(2) Except where these Rules provide otherwise, the court may – [ … ] (o) order the parties to engage in alternative dispute resolution”

16. However, it will be noted that the rule extends only to the parties to the proceedings. The respondent is not (yet) a party. But it would become a party if it were joined as a costs-only party (as the claimants would prefer), or if the two sets of proceedings were consolidated (as the respondent accepts would be sensible): see Wormleighton v Cape Intermediate Holdings Limited [2024] EWHC 1971 (KB), [59], where Hill J pointed out that the effect of consolidation of proceedings is that the claims “proceed thereafter as one claim”. So, the first question with which I must deal with is whether to join the respondent as a costs-only party or to consolidate the claims. If I were to do neither, the question about the mediation order would not arise. Discussion Joinder as a costs-only party

17. I consider first joinder of the respondent as a costs-only party. I state at the outset that the first defendant is neutral on this question. It is one between the claimants and the respondent. The initial problem that confronts me is that the claimants have not yet made any application against the respondent under section 51 of the 1981 Act . I assume that this is because no (judicial) decision has yet been made as to whether the claimants should succeed in their probate/rectification claim. Indeed, it is difficult to think of circumstances in which a costs order against the respondent and in the claimants’ favour would be made before that decision were reached. That being the case, the question that arises is whether I should join the respondent as a cost-only party to the claim to facilitate the making of such an application in the future .

18. The claimants say that I should, because it will give the respondent the opportunity to defend its position, or to choose not to do so at this stage, but in any event to be involved in settlement discussions. To my mind, this rather puts the cart before the horse. The first thing to decide is whether to exercise the summary jurisdiction under section 51 at all. In doing so, the court must ask itself “whether it is appropriate to adopt a summary procedure of the kind envisaged in the authorities”. And this depends on whether the non-party “was so closely involved in the litigation that there was no injustice in adopting a summary procedure for dealing with the [ section 51 ] application and holding [the non-party] bound by the findings of fact made by the judge in the main action”.

19. If the summary jurisdiction is appropriate, it will be because it is not unjust to hold the respondent “bound by the findings of fact made by the judge in the main action”. The summary procedure will then proceed on the basis of the facts as already found. It will not be a question of the respondent seeking to defend itself against allegations of negligence as though a negligence claim were being defended. I was referred to the cases of Re Bimson [2010] EWHC 3679 (Ch) , Gerling v Gerling [2011] WTLR 1029 (Ch), and Pead v Prostate Cancer UK [2023] EWHC 3224 (Ch) . In each of these cases, non-party costs orders were made against solicitors who had made mistakes in drafting wills. But they were all cases in which the solicitors did not resist being joined for the purposes of making a non-party costs order against them. Indeed, in at least one of them the solicitors agreed to the non-party costs order. And, in Marley v Rawlings (No 2) [2015] AC 157 , SC, the insurer of solicitors who had caused wills to be defectively executed had required the disappointed beneficiary to bring proceedings to test the validity of the will but at the insurer’s expense .

20. This case is very different. The will writers have not accepted liability for negligence, and have not agreed to an order against them under section 51 . If this probate/rectification claim were tried out and the claimants were unsuccessful, it would simply not be appropriate to engage the summary procedure provided for by section 51 , so long as the respondent resisted liability. That could only be determined after a trial of the negligence claim, including the important questions of causation and quantum of loss. And, if it would not be appropriate to engage the summary procedure after the conclusion of this claim, it is even less appropriate to do so before that conclusion. Consolidation

21. On the other hand, consolidation of the negligence proceedings with the present claim would achieve what the claimants actually seek. This is that the court would have jurisdiction to order the respondent to take part in alternative dispute resolution. Of course, the claimants would have to serve particulars of claim on the respondent in the negligence claim before it could realistically be expected to take a view on any mediation, for example in a position statement prepared in advance. I mention that the claimants at the hearing pronounced themselves willing to serve such particulars “in short order”, by which (when asked) they said they meant within a fortnight or less.

22. On the other side, the respondent for its part would be content for consolidation of the two sets of proceedings to take place. As it says, the “two sets of proceedings arise from the same set of facts and consolidation would enable [the respondent] to engage with the proceedings substantively.” Accordingly, in my judgment the right order to make is not one for the joinder of the respondent to the probate/rectification for costs purposes only. It is one for the consolidation of the two sets of proceedings. The consolidated proceeding will be managed and tried in the High Court, in the Business and Property Courts in Bristol. Compulsory mediation?

23. I turn now to consider whether, once the proceedings are consolidated, and the respondent has become a party, the respondent should be ordered to attend the mediation fixed for 17 October 2025. The respondent says that it is not opposed to mediation in principle, provided that it has enough time to investigate the position beforehand. The claimants however say that this is an old claim, and that the respondent has had plenty of time to consider its position.

24. In my judgment, however, I consider that it is one thing to have a general idea of a negligence claim against you, and yet another to have the details. The particulars of breach of duty, the question of causation of loss, and the details of the loss alleged are all important here, and certainly the second and third of these are matters within the knowledge of the claimants rather than that of the respondent. I do not think it is unreasonable for a person being invited to take part in a mediation on the basis that it will be invited to contribute substantively to a resolution to know, sufficiently in advance, exactly what is alleged against it, as well as what loss is said to flow from the conduct alleged.

25. Accordingly, I will order the claimants to file and serve their particulars of claim in the negligence proceedings by 4 pm on 17 September 2025. Although that is a comparatively short period, I consider that on the facts of this case it is feasible. Moreover, I consider that a month from receipt of those particulars before the mediation takes place is a sufficient time to prepare for it.

26. On that basis, I think it is open to me to order the respondent to participate in the mediation on 17 October. As to the merits of doing so, I consider that this tripartite litigation cries out for mediation. There is no new law involved, and the essential disputes of fact are both clear and not numerous. The important documents have already been disclosed. The value of the claims will quickly be exceeded by the costs of a trial. The best chance of resolving the matter will come earlier, when fewer costs have been incurred, compared to later. The risks for each party of going on with the litigation will be an important consideration at the mediation. Two of the three parties have already agreed to mediate, and the arrangements have been made. I will therefore order the respondent to attend and participate in the mediation on 17 October 2025. I will also stay the consolidated proceedings once the claimants have served and filed their particulars of claim, pending the mediation. If the mediation is unsuccessful, then the stay will be lifted, and the consolidated proceedings will continue in the usual way. Conclusion

27. It was for the above reasons that I announced my decision to consolidate the two sets of proceedings, to order the claimants to file and serve particulars of claim in the negligence proceedings by 4 pm on 17 September 2025, thereafter to stay the proceedings pending the mediation on 17 October 2025, and to order the respondent to attend and participate in that mediation. I should be grateful to receive a draft minute of order, preferably agreed, for consideration.