The High Court has ordered Gerard Markey to pay his sister Mary Markey’s costs personally after he failed in a dispute over debts connected to their late father’s estate. The court also directed that the special administrator’s costs be paid from the estate and charged against property specifically devised to Gerard.
Mr Justice Herbert gave the costs judgment on 14 July 2006. It followed an earlier judgment, delivered on 24 January 2006, which found Gerard obliged to indemnify the estate for the debts at issue. The present application concerned who should bear the costs of that litigation and related proceedings; it did not reconsider that earlier finding.
The dispute arose during administration of the estate of Philip Markey, a businessman who had lived at Curragh Lawns Nursing Home, Kinneagh, Curragh, County Kildare, and formerly at The Stray Inn, Mile Mill, Kilcullen, County Kildare. Gerard argued that the costs of all parties, along with certain linked costs, should be paid from the estate. Mary sought payment of her and the special administrator’s costs from the estate, with an order over against Gerard, or an order requiring Gerard to pay them personally. The special administrator also sought costs from the estate.
Justice Herbert treated the underlying dispute as hostile litigation between beneficiaries, rather than a probate action about the validity of a will or the deceased’s testamentary capacity. He said the special administrator had brought the application in a nominal capacity to obtain the court’s direction, while the parties had litigated their competing positions through their own evidence and witnesses. Applying the approach for adverse beneficiary litigation in *In Re Buckton*, he rejected Gerard’s claim to costs from the estate and ordered him to pay Mary’s costs.
The personal costs order covers the Special Summons and specified related proceedings, including an application for directions, discovery, an application to the High Court Master and an appeal from the Master’s decision. It also includes the hearing costs and proper and reasonable fees for a named chartered accountant and any stenographer’s expenses. The judge excluded Mary’s written legal submissions as a separate costs item. The costs awarded to Mary and the special administrator include the costs of the costs application itself.
The judge directed that the special administrator’s costs, including those of solicitors appointed to advise and act for him, be paid from the estate. To avoid placing that burden on Mary’s residuary gift, he ruled that those costs should be charged against the real estate specifically devised to Gerard. The judgment states that the property had been valued in 2002 at approximately €685,000 to €700,000. Gerard could not require the property to be transferred to him free of that charge.
A separate costs order made by Justice Kearns on 10 March 2003 was not appealed. Justice Herbert directed that those costs be paid from the estate under the statutory order for applying assets in a solvent estate.