Out-of-Pocket: Capping Costs in Family Provision

The Succession & Probate List Practice Note provides that:

Orders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the net distributable value of the estate (excluding costs of the proceedings) is less than $500,000.

This means that even if the Court orders that the successful party’s legal costs be paid either out of the estate or by the unsuccessful party, it may make an order capping (limiting) the amount of costs which may be recovered and leaving the successful party ‘out of pocket’ for some of its legal costs.

In determining whether or not to make a costs capping order, and the amount of the cap, the Court will look at the matter on an impressionistic basis, taking into account:

• whether the costs are excessive having regard to the nature of the case, the size of the estate and the amount claimed;
• the conduct of each party in running the matter – whether they occasioned unnecessary delays or incurred unreasonable costs, or whether they acted efficiently to narrow the issues and shorten the time for hearing; and
• the relative size of the plaintiff’s and the defendant’s legal costs – comparing the unsuccessful party’s costs, where it was acting reasonably and without over-servicing, with the successful party’s costs (on the assumption that the required work should have been approximately equal).