Mussell v Patience makes it clear that litigation costs principles differ from estate costs principles, as Chris Williams & Henrietta Mason explain
- The court cannot deprive executors out of their indemnity out of the estate for costs or expenses or liabilities unless they have acted improperly.
In a trusts dispute, where a litigation order had been made for the defendants to pay 80% of the claimant executors’ costs on the standard basis earlier in the same proceedings then, in deciding the entitlement of executors and trustees to an indemnity for costs out of the estate, the court would not deprive the executors/trustees out of such indemnity for costs, liabilities and expenses incurred on behalf of the estate unless they had been incurred improperly.
However, it would be wrong to assume that there would be any automatic ‘carry-over’ from a litigation costs order involving executors/trustees to an order concerning the right to indemnity of such executors/trustees, as litigation costs principles were different from estate costs principles.
Facts
The proceedings in the matter of Mussell v Patience [2019]
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