Judges make decisions on legal issues, but they also take into account the conduct of the parties both before and during the lawsuit and how this might impact their case. 

Let’s look at the real-world consequences of the High Court’s decision in Ellis v Ellis, an inheritance case.

Background: A Family Dispute Over a Farm

The dispute centred on the estate of the Late Yeamon Keith Care, who left his share of the Tregear Farm in Cornwall to Luke Ellis. However, Keith’s brother, Vivian, challenged the Will.

Keith died in March 2020 and Vivian indicated an intention to challenge the Will a few months later. However, Luke did not issue proceedings to prove the Will until July 2022, at which point Vivian responded with a defence and a counterclaim.

Following a case and costs management conference in May 2023 and mediation being attempted in September 2023 to no avail, the judgement handed down in January 2025 upheld the validity of the Will and dismissed all Vivian’s counter claims.

Successful claim?

On the face of it, this appeared to be a straightforward success.

However, the real lesson emerged in the subsequent costs Judgement. Although the starting point was the known ‘costs follow the event’ rule, the Ellis v Ellis case highlights that costs orders are neither automatic nor absolute.

The court went on to undertake a detailed examination of the parties’ conduct, because Vivian argued there should be a departure from that rule.

The journey to litigation can matter as much as the destination.

Compliance with Dispute Procedure

When a dispute arises, parties are expected to engage meaningfully with pre-action conduct requirements under the Civil Procedure Rules - the whole purpose of which is to keep cases from needing to go to court. These encourage early exchange of information, consideration of settlement and the use of alternative dispute resolution, with litigation (court proceedings) regarded as a last resort.

Where a court finds a material failure to comply with pre-action obligations, it may impose sanctions even against the party who has been ultimately successful, retaining full discretion in assessing the seriousness and impact of non-compliance.

Vivian argued that Luke should not recover all his costs because of alleged failures before the claim was issued. He also disputed whether the executors to the Will should recover their costs and claimed Luke’s settlement offer was unclear.

The Court’s Decision

Here are the outcomes of the case:

·       Trial costs: the High Court ordered Vivian to pay the costs of both Luke and the executors, applying the general rule that costs follow the event. The court rejected arguments that Luke’s failure to send a formal Letter of Claim justified departure from that rule.

·        Letter of claim: Vivian had long been in possession of the key documents and sufficient information to formulate his case; the absence of a Letter of Claim from Luke caused no prejudice or lost opportunity to settle.

·        Mediation: The court also dismissed criticism of the timing of mediation. Although mediation did not take place until September 2023, the delay was justified by Vivian’s failure to provide key disclosure, including medical records and evidence supporting his claim. Earlier mediation would likely have been ineffective, and no costs sanction was appropriate.

·        Probate costs: The established probate costs exceptions were found not to apply. The Will had been professionally prepared and was clear, and any reasonable period for further investigation had expired well before proceedings were issued.

The court upheld Luke’s offer as clear and a genuine attempt to settle, rejecting submissions that it was uncertain or technically flawed. As a result, the usual costs consequences applied. The court ordered Vivian to pay the executors’ costs, holding that it would be wholly unjust for either Luke or the estate to bear them.

Why This Matters

For those considering a probate challenge, Ellis v Ellis is a stark reminder that courts will closely scrutinise conduct long before trial.

Delays, failure to articulate a claim, withholding disclosure or pursuing weak grounds beyond a reasonable investigation phase, can carry severe costs consequences.

Probate claims must be pursued promptly, proportionately and on a properly informed basis. Parties who act reasonably, engage with settlement and comply with procedural obligations are far more likely to be protected on costs, making early legal advice and a careful pre‑action strategy critical in probate disputes.

How Pardoes can help

At Pardoes, we understand that there are times in life when it can seem very daunting to need legal advice, particularly if you have lost a loved one, need to plan for your later years or have never had the need to use a solicitor. We have a wealth of experience and you’ll find us genuinely friendly, empathetic and professional.