The High Court ordered Thomas O’Connell to pay 90% of Breda (Bridie) Murphy’s costs after rejecting his claim to 8,937 Kerry Group shares held by the late John T. Cronin. The court also directed that the executor’s costs be divided equally between the estate residue and the gift to Thomas O’Connell under the will.
In a costs judgment delivered on 21 April 2023, Ms Justice Butler said Murphy had succeeded entirely in the underlying dispute: the will’s 1990 gift of Kerry Co-Operative shares did not include the Kerry Group shares Cronin acquired later. The earlier substantive judgment was delivered in 2021. The costs judgment did not revisit that ruling; it determined how the litigation expenses should be allocated.
The executor, Padraig O’Connell, had brought the proceedings to obtain the court’s direction on the shares. Although he initially took a neutral position on costs, he later argued that all parties’ costs should be paid from the estate residue. The judge accepted that the executor was entitled to his costs from the estate, but rejected the proposal to charge them entirely to the residue. She ordered that his costs, including reserved costs and the costs of the costs application, be met 50% from the residue and 50% from Thomas O’Connell’s gift under the will.
Thomas O’Connell sought his own costs from the estate, relying on older probate-costs principles. The judge declined to make that order. She held that the statutory costs framework applied to these civil proceedings and that the starting point was that the entirely successful party could recover costs from the unsuccessful party. She said this was, in substance, a dispute between beneficiaries over their respective entitlements, rather than a challenge to the will’s validity. The special approach associated with challenges to testamentary validity did not apply on these facts.
The judge also took account of Murphy’s rejected settlement offer. Made on a “without prejudice save as to costs” basis, it proposed that the shares fall into the residue, that Thomas O’Connell receive a one-twelfth share in it, and that all parties’ costs be paid from the estate. The judge considered the offer reasonable in light of the outcome.
Murphy’s costs were reduced to 90% because her opposition to the application to admit oral evidence, and her own expert evidence, added to the hearing’s length and complexity. The court ordered the 90% award and all her costs of the costs application against Thomas O’Connell, with those costs charged on his gift under the will. The judgment left the costs to be adjudicated if the parties could not agree.