Senior Costs Judge Rowley has held that the costs of Probate are recoverable in principle in Civil Litigation where Probate is conducted for the purpose of bringing the litigation only. Where Probate is required to administer the estate then no more than the costs of obtaining a copy could be claimed in the litigation. The decision in Personal Representatives of the Estate of Maurice Hutson (Deceased) & Ors v Tata Steel UK Ltd [2025] EWHC 1594 (SCCO) (25 June 2025) offers welcome clarity on the approach to Probate costs. It makes clear that bar for establishing Probate was obtained for the purposes of litigation should not be a high one. The witness evidence provided by the Claimant solicitors was more than sufficient to answer this question.
The judgment also addresses questions around the approach to hourly rates at assessment, the recoverability of mail merge letters (mailshots) in GLOs and the recoverability of work relating to obtaining evidence of co-workers.
The case related to a Group Litigation claim against Tata Steel UK in what was referred to as British Steel Coke Oven Workers Litigation. This related to claims for respiratory diseases and lung cancer which was linked to exposure to hazardous chemicals and fumes during coke production.
Speed Read
The judgment can be summarised as follows:
1. Probate costs are recoverable in principle where they are for the purpose of the litigation only. If they are required outside the litigation in any event then only the costs of obtaining a copy could be claimed. The bar for establishing that Probate was obtained for the purposes of the litigation should not be a particularly high one.
2. Guideline Hourly Rates are only a starting point for the court on detailed assessment.
3. The reasonableness of hourly rates should be considered against the pillars of wisdom under CPR 44.4. Generally the most important factors are value, complexity and skill & expertise.
4. Asbestos-related diseases and other longtail disease claims require specialism in understanding how to deal with events that occurred long ago.
5. There are multiple ways to run a case reasonably & proportionately. It may be, for example, that a more senior fee earner has a higher rate but takes less time.
6. For MailMerge work (periodic correspondence sent to a group of claimants) this was recoverable in principle. It was accepted here that there was a certain amount of “topping and tailing” to be done on each letter. The 2 minute units claimed was a reasonable approach.
Recoverability of Probate Costs & the approach
The Defendant had relied on Mosson v Spousal (London) Ltd [2016] EWHC 54 (QB) (25 January 2016) to argue that the costs of obtaining a Grant of Probate were not recoverable on an inter partes basis.
The Claimant’s position was that Mosson was irrelevant as the Claimant had sought Probate as costs not damages.
Senior Costs Judge Rowley noted that:
"67. As the arguments evolved, it was clear that the parties took a very similar line as to the extent of the dispute. The managing judge, Turner J, and indeed the parties themselves, were clear that a grant was required for any claimant to take part in these claims. If the only reason for the claimant to obtain the grant was for this purpose, then the reasonable costs of doing so would be recoverable. If a grant was obtained to administer the estate, then no more than the costs of obtaining a copy could be claimed in the litigation.
68. These general principles could be established from some fairly ancient case law and some more recent decisions of costs judges which have not been reported in any formal way. None of them really assisted with the defendant's essential point of how the claimant was to prove that the grant was taken out simply for the litigation. Mr Waszak used the word "exclusively" and submitted that any doubt would need to be exercised in favour of the paying party since this is a standard basis assessment. Mr McDonald did not accept that the exclusive test was appropriate.
69. The reason for Mr McDonald's approach, in my view, is that this is not a situation where there is likely to be any doubt. The question is really how much evidence is required to establish that the claimant would not have sought a grant if it were not to make a claim? In these cases, the solicitors for the claimants have provided evidence about the size of the relevant estates and why grants were not required to deal with items such as bank accounts which would often be released without great formality.
70. I was given the impression that some comments in this judgment would help as being some form of guidance in these claims. That is not the role of a first instance judge and, to the extent that the following paragraph is of any assistance, it is very much a reflection on the dearth of any other recent, easily accessible decision.
71. In my view, the bar for establishing that the grant was obtained for the purposes of the litigation is not a particularly high one. If the personal representative or administrator attended court on the assessment of their costs, it would require no more than their confirmation that the grant had been obtained for the litigation for the costs of so doing to be allowed in principle. Consequently, the witness evidence of the two solicitors in these cases which is both detailed and backed by supporting documents is more than sufficient in my judgment to establish these claims."
Approach to Hourly Rates at Detailed Assessment
The decision also considers the approach to hourly rates and what is reasonable. In this case work commenced pre the 2021 Guideline Hourly Rates with the Claimant seeking Grade A at £315, B at £278, C at £244 and D at £147. The Defendant had offered the 2021 GHRs, namely £261 for A, £218 for B, £178 for C and £126 for D.
The court made clear that “The guideline rates have always been said to be broad approximations only and, on a detailed assessment, the court has the opportunity to hear rather lengthier submissions from each party about the factors in the case which go to the reasonable hourly rates and to consider the files of papers of the receiving party's solicitors. Consequently, the guideline hourly rates are usually only a starting point for the court on a detailed assessment.”
Senior Costs Judge Rowley acknowledged the need to have regard to the pillars of wisdom in CPR 44.4. He added that value, complexity and skill & expertise are generally the more important factors in determining the weight of the case and the skill of the solicitor.
The court had to first consider the complexity of the claim given the Claimant and Defendant had contrasting views on this point. It was concluded that:
"The result of my conclusions about the process leads to the view that these cases had all the complexity of longtail disease litigation and that the number of cases being brought did not materially affect what each claimant needed to prove. In essence, these claims were no different from claims which were regularly brought by firms instructed by trades unions against large manufacturing employers on behalf of their individual members. A degree of familiarity with the documentation produced by those employers and their general procedures did not prevent each accident or disease claim having to be investigated."
The court continued:
"40. It follows from my comments as to the complexity of these cases that I do not accept Mr Waszak's argument that the scheme that was ultimately introduced made any real difference to the weight of the cases and the expertise needed to be deployed in the seven pillars of Wisdom.
41. Claims for asbestos-related diseases and other longtail disease claims require specialism in understanding how to deal with events that occurred long ago. Aside from that aspect however, these claims are the sort of employer's liability claims which a specialist firm would be expected to handle without difficulty. The use of more junior fee earners to run these cases cast some light on the complexity but is more demonstrative in my view of specialist firms being able to delegate work that would tax a more senior solicitor in a non-specialist practice.
42. Traditionally, industrial disease claims have tended to achieve lower damages awards than industrial accident claims. (This can be demonstrated from the threshold level at which success fees were at large in industrial disease claims during the fixed recoverable costs agreed through industry stakeholder agreements. The threshold level for disease claims was £250,000 whereas for accident claims it was £500,000). There are inevitably a variety of levels of damages between the sample claimants but it is clear that they are valuable, even where the claims relate to deceased workers. Whilst there is a certain amount of fixing of the damages for the most minor claims, I take the view that there was clearly work to be done generally in relation to quantification."
Further the court stated that:
"45. The question of hourly rates is only one side of the coin when considering the reasonableness of work done by solicitors. The obverse is the amount of time spent by the fee earners involved and, often, the choice of the level of fee earner who does that work. Mr McDonald referred to the defendant's solicitors using Grade A lawyers and that supported his argument about the complexity of the work to be done. There was nothing before me as to the decision by the defendant to use this level of fee earner. It is entirely possible that the solicitors concerned would spend much less time dealing with the work they needed to do than more junior fee earners. There is more than one way to run a case in a reasonable and proportionate fashion notwithstanding the very regular arguments deployed by paying parties that there had to be more delegation of work than had been demonstrated by the receiving party's bill.
46. Therefore the hourly rates that I allow are for work to be done by the relevant grades of fee earner which is justified by the nature of that work. The level of fee earner will also have an impact on the amount of time reasonably taken for any particular task.
47. Having made these comments, I take the view that the hourly rates claimed by the two firms of solicitors are reasonable for the work required to be done in respect of the individual costs and consequently I allow them as claimed."
MailMerge
The court also had consideration of the recoverability of work described as ‘mailmerge’ which was periodical correspondence sent to a group of Claimants under a GLO. Such work had been claimed at a rate equivalent to 2 minute units. It was accepted by the court that there was some need as to individualisation of the letters and it was concluded as follows:
"This limited topping and tailing would not necessarily be sufficient in my view to prevent the time being claimed as common costs if something akin to standard routine letters were claimed from the defendant at 6 minutes each. But the two minute approach, previously approved by Nelson J in another Giambrone decision (Giambrone v JMC Holidays Ltd (formerly Sunworld Holidays Ltd) [2002] EWHC 495 (QB)) seems to me to be a reasonable approach to picking up the time on the individual case without claiming full routine letters."
Conclusion
There is welcome guidance here on the approach to the recoverability of Probate costs and the test for the same which should bring clarity for those dealing with costs claims where Probate costs are sought.
Moreover, Rowley's comments and approach to assessing the reasonableness of hourly rates reaffirms the importance of the CPR 44.4 factors.
For those handling GLOs the MailMerge comments also highlight a reasonable approach which can be taken for recovery of such time.
Should you have any queries arising from this article or upon costs generally then please do not hesitate to get in touch with our friendly team either via phone 01482 534567 or e-mail info@carterburnett.co.uk.
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