Costs

It was established law that a positive case had to be made for departing from the general rule that the successful party was entitled to his costs. Under CPR 44.3(4) the court had to have regard to all the circumstances, including the conduct of all the parties and whether a party had succeeded on part of his case, even if he had not been wholly successful.

Further, under CPR 44.3(5), the court had to consider the conduct of the parties, which included whether it was reasonable to raise, pursue or contest a particular allegation or issue; the manner in which a party had pursued or defended his case or a particular allegation or issue; and whether a claimant who had succeeded in his claim had exaggerated his claim.

Moreover, in contested probate cases there were two recognised exceptions to the general rule that an unsuccessful party should pay the successful party’s costs, namely: (i) if a person who had made a will, or