Last week on 18th September 2014, the insurers of the negligent solicitor in the Marley v Rawlings case was ordered to pay close to the entire total cost of both parties.
This contentious probate case was regarding the wills of an elderly couple from Kent, Alfred and Maureen Rawlings. They had two natural sons and one adopted son, Terry Marley.
In 1999, the Rawlings were instructed by their solicitor to prepare identical wills, which both left their entire estate to their spouse. If however the other spouse had deceased, the estate would be inherited by their adopted son.
The solicitor then drafted the wills which the couple signed. It was later discovered, after the couple has passed away, each will was signed by the other spouse accidentally.
This led to litigation between Terry Marley and the Rawlings’ natural sons, whereby Marley requested the wills be rectified and the other sons insisting the estate be left to them by intestacy.
Though the sons triumphed at both the England and Wales Court and the Court of Appeal hearing, Marley prevailed in UK Supreme Court, where it was stated the wills were still valid.
Legal costs incurred were far greater than that of the estate, which raised concerned as to how the two parties would be paid. The insurer of the negligent solicitor has underwritten Marley’s litigation costs and were in support of his claim that the case was ordinary hostile litigation. This meant the sons would have to pay Marley’s costs, from all three court hearings.
Against this claim, the natural sons argued all parties’ costs should come from the estate, which is often carried out in contentious probate cases. Alternatively they could be paid by the negligent solicitor.
In the High Court and Court of Appeal, the sons’ legal advisors acted on a traditional basis. The counsel in Supreme Court instructed them on conditional fee arrangements (CFA), allowing both barristers to claim the estate was to pay for the Rawlings’ sons’ costs.
The Supreme Court made the final decision on how costs would be paid, based on the actions of the negligent solicitor. It was decided the negligent solicitor’s insurer should cover the cost of both parties, incurred in the High Court and Court of Appeal.
The Supreme Court cost itself was to also be paid by the insurer for Marley, who would also cover the Rawlings’ solicitor’s disbursements. This would be in addition to the fees of the Rawlings’ two counsels, under the condition the counsels would disclaim their entitlement to success fees under the CFA. The claim to success was dropped, so only base costs will be received by the Rawlings’ barristers.
If however the costs were ordered to be paid from the estate, the Supreme Court claim this would have resulted in the negligent solicitor or his insurer having to reimburse the estate. The Rawlings’ counsel would have also been able to claim their success fees under the CFA.
