Case Study: Inheritance (Provision for Family and Dependants) Act 1975 Claim

Kershaw v Roberts (Representative of the Estate of Jones) and another [2014] EWHC 1037 (Ch)

The Claimant, Ian Kershaw, lived with Miss Jones for some years before her death. Miss Jones died intestate and Mr Kershaw brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) for reasonable financial provision from Miss Jones’ estate. The Defendants are the Deceased’s sister and personal representative and the Deceased’s son, who is the beneficiary under the intestacy subject to Mr Kershaw’s claim.

The case relates to a point of procedure regarding the application of cost budget rules to a Part 8 claim.

The claim was issued and a notice for a directions hearing was sent to the parties. Seven days before the hearing the Claimant served a costs budget and the Defendants in response then served their own costs budget two days before the hearing. 

At the hearing, the Claimant argued that the hearing was in substance a Case Management Conference (CMC) and that the Defendants had failed to serve their costs budget within the appropriate time of seven clear days. The Claimant argued, therefore, that the Defendants’ costs should be limited to court fees only. The District Judge held that a costs case management hearing should be listed for the issues to be decided, at which it was held that the initial hearing had not been a CMC and therefore the Defendants had no obligation to file a costs budget.  

The Claimant appealed and argued that the claim had been automatically allocated to the multi-track and that any directions hearing under Part 8 of the Civil Procedure Rules (CPR) is a CMC. 

Under Rule 57.16(1) CPR, 1975 Act claims must be brought under Part 8 procedure which is appropriate for claims where there is no substantial dispute of fact.

Rule 8.9(c) provides that where Part 8 procedure is followed, the claim shall be treated as allocated to the multi-track. 

CPR Part 29 applies to multi-track cases, with Rule 29.2 allowing the court to fix a CMC or pre-trial review at any time after the claim has been allocated to the multi-track.

At the time that this case was being considered, Rule 3.12 established that the costs management provisions in Part 3 apply to all multi-track cases, (see the final paragraph below.) Under Rule 3.13, all parties, except litigants in person, must file and exchange costs budgets either by the date specified in the court’s notice or seven clear days before the first CMC. Under Rule 3.14, a party which fails to file a costs budget will only be able to recover court fees. 

Judge Hickinbottom held that the initial hearing was not a CMC.  On the basis that Rule 8.9(c) does not automatically allocate Part 8 claims to the multi-track, judges have discretion to allocate Part 8 claims to any track. Only when the claim is specifically allocated to the multi-track do the provisions of Part 29 apply. Since the claim was only specifically allocated to the multi-track at the initial hearing, that hearing could not itself have been a CMC. Judge Hickinbottom also stated matters of fact in support of his conclusion. The Notice of Hearing had referred to a “Directions Hearing”, the 30 time estimate allocated for the hearingin that Notice would have been inadequate for a CMC and there had been no attempt to agree the costs budget as would be required before a CMC.  

Given that the hearing was not a CMC, the Defendants’ cost budget could not have been late. The Rule 3.14 sanction did not therefore apply to that budget. It does not appear to have been considered by either party, but as the Claimant’s had not provided their costs budget within seven clear days of the hearing either, had the hearing been a CMC they too would have been subject to the sanctions in Rule 3.

This case is now of historic interest. As of 22 April 2014, Rule 3.12 has been amended to provide that Part 8 claims are no longer the subject of costs management at all.