The High Court ordered that Christopher Cawley and Susanna Cawley’s costs in a dispute over assets jointly held by the late Celine Cawley and Eamon Lillis be paid from the joint fund before it is distributed. The order also covers reserved costs of an application to join Georgia Lillis as a plaintiff. The court made no order in relation to the defendant’s costs.
The ruling, delivered by Ms Justice Laffoy on 21 February 2012, dealt only with costs. The underlying proceedings had been settled except for that issue. The settlement terms had been handed to the court on 24 January 2012, and orders were made in their terms. The costs judgment says implementing the settlement would create a fund from realising assets jointly held by the defendant and the deceased when she died.
The original plaintiffs brought the proceedings as the deceased’s personal representatives. The court said the dispute concerned ownership and title to assets that did not form part of her estate, though the proceedings were properly brought because they affected the interests of the estate and the defendant. Georgia Lillis, described in the judgment as the beneficiary, was joined as a plaintiff by court order on 27 June 2011. She had not reached majority when the proceedings began.
The plaintiffs had argued that the estate became solely beneficially entitled to the joint assets on the deceased’s death, which they said was caused by the defendant’s criminal act. The defendant argued that he became solely beneficially entitled through survivorship. In its earlier judgment, the court found that legal title accrued to the defendant, who held the assets on constructive trust for himself and the estate in equal shares.
In deciding costs, the judge said the special rules sometimes applied to costs in probate actions did not govern this case. She considered written settlement offers made by both sides but found that neither determined who should bear the costs. The defendant’s offer of an equal division, made on 10 November 2011 and open until 15 November, came too late to carry weight, as most costs had already accrued. The plaintiffs’ earlier proposal had not been accepted.
The judge said the proceedings were necessary after the defendant did not respond to five letters seeking his position on the assets before the case began. She also found that he maintained his claim to sole beneficial ownership until less than a week before the hearing, and that his conduct necessitated joining the beneficiary. The court therefore directed that the plaintiffs’ costs be paid from the joint fund before distribution, with no order as to the defendant’s costs.