Background
Ms O’Boyle was appointed under CPR 19.12 as representative of the estate of her late ex-husband, Paul O’Boyle, in long-running litigation against Mrs Wallis. The underlying claims were ultimately struck out. Master Kaye’s order of 18 July 2025 made Ms O’Boyle personally liable for the same costs as the estate itself — on the basis that a representative automatically bears the same costs liability as the party she represents. Ms O’Boyle appealed, and in a reserved judgment of 28 April 2026, Deputy Judge Andrew Twigger K.C. allowed the appeal in part: the principle of automatic co-extensive personal liability was wrong, and Ms O’Boyle’s costs liability was confined to the period from 14 March 2025 (her appointment) to 18 July 2025 (the strike-out hearing).
This June 2026 judgment resolves the consequential matters that remained in dispute after the main appeal, including the precise wording of the order, the quantum of a payment on account, the costs of the appeal itself, and whether permission to appeal should be granted to Mrs Wallis on two discrete issues.
A further complication was that the claimants’ former solicitors (referred to as TF) had, while still on the record, caused wasted costs for which Mrs Wallis obtained an order; TF subsequently settled that claim for an undisclosed sum. The court had signalled in the April judgment that it could not fairly assess an interim payment without knowing how much TF had already paid and for which period of costs.
The Court’s Holding
On the wording of the order, the court accepted Mrs Wallis’s formulation that Ms O’Boyle is jointly and severally liable for costs incurred from 14 March 2025 to 18 July 2025. The court rejected the appellant’s attempt to limit that liability to costs “incurred as against her and the estate” — the argument had not been raised on appeal and, in any event, the two claimants’ claims were inseparable and had been pursued together throughout. The court also confirmed that costs relating to the application to appoint Ms O’Boyle as representative (incurred before 14 March 2025) fall within her liability, because Master Kaye had already ordered “costs in the case” on that application and those costs were caused by the appellant.
On the payment on account, the court ordered only £10,000 — far below the £45,489.15 sought by Mrs Wallis. Two concerns prevented a higher award: first, the £60,652 claimed for just four months appeared disproportionate relative to the £200,000 total incurred over five years; second, and more significantly, Mrs Wallis provided no evidence of how much TF paid in settlement of the wasted costs order, making it impossible to exclude the risk of double recovery for the same period. In the absence of that evidence, a reliable interim payment could not be assessed and the modest sum proposed by the appellant was adopted.
On the costs of the appeal, the court awarded Ms O’Boyle 80% of her appeal costs, summarily assessed at £3,599.90. The court held that the indemnity principle was not violated merely because family members paid the legal fees: the solicitor’s client is presumed personally liable for fees, and that presumption can only be displaced by an express or implied binding agreement that the client will never be liable under any circumstances. No such agreement was shown. The court refused Mrs Wallis permission to appeal on the issues of standing and abuse of process, finding no real prospect that the Court of Appeal would interfere with the evaluative judgments made in the April 2026 decision.
Key Takeaways
- A CPR 19.12 representative appointed during live litigation is jointly and severally liable (with the other claimants) for the defendant’s costs incurred during the period of that appointment; the court will not attempt to apportion costs between co-claimants where their claims are inseparable.
- Where a third party (such as former solicitors) has settled a wasted-costs claim covering the same period, a court will decline to order a substantial payment on account unless the receiving party demonstrates that there is no overlap and no risk of double recovery.
- The indemnity principle does not bar a costs award merely because the paying party’s legal fees were funded by third-party family members; the presumption of personal liability to one’s solicitor holds unless there is an express or implied binding agreement that the client is under no circumstances liable — the mere fact of voluntary third-party payment does not suffice.
- A deputy judge sitting on a first appeal retains jurisdiction to grant permission to appeal on issues that arose for the first time before that judge (as distinct from re-appeals from the master’s original decision), but permission was refused here because the standing and abuse-of-process rulings had realistic prospects of being upheld.
- Where a successful appellant has not prevailed on every ground, the appropriate course is a proportionate reduction in the costs award rather than ordering the successful party to pay the unsuccessful party’s costs.
Why It Matters
This judgment provides practical guidance on two recurring costs-law problems. First, it reaffirms that courts take a robust approach to the indemnity principle: a respondent challenging a costs award on indemnity-principle grounds must show a binding agreement of non-liability, not merely the absence of a formal loan or repayment obligation — a standard that is deliberately hard to meet. Second, it illustrates the court’s readiness to order a minimal payment on account, or none at all, where there is unresolved doubt about whether costs have already been satisfied by a third party; parties seeking interim payments must proactively disclose settlements that could create double recovery.
More broadly, the case continues to develop the law on the personal costs liability of CPR 19.12 representatives — a question of growing importance as litigation involving estates of deceased or incapacitated parties becomes more common — and illustrates how courts will calibrate partial success on appeal into a proportionate costs order rather than treating the outcome as all-or-nothing.