In the recent Judgment of Jones v Longley 2015 EWHC 3362 Ch, the First Defendant has been ordered to personally pay the costs of the Claimant despite the Claimant failing to achieve an order in the terms that he sought.
The decision of Master Matthews was made on the basis of the unreasonable conduct of the First Defendant and the fact that he considered the Claimant had the interests of the estate in mind when he brought an application for the removal of the executors (himself being one of them). The Court considered that the estate would have remained 'deadlocked' were it not for the application.
The costs decision serves as a stark reminder to executors involved in litigation (and any party to litigation) that sometimes it is necessary to step back from personal concerns and consider what is right for the estate and act accordingly. Where it is clear that the relationship between the executors has broken down the usual, sensible course of action is for one or both of them to be removed.
In my judgment, whether or not the Claimant has in substance been successful in bringing this claim, and whether or not he has committed any breaches of duty in the administration, he can be regarded as having done the right thing in the interests of the estate and its beneficiaries in bringing these proceedings. That is conduct to be encouraged. The behaviour of the First Defendant, on the other hand, in conducting the litigation in such an unreasonable way as I have described, is not.