Murphy v Butler [ORSE Murphy] and Ors [No. 3] (Approved)

Factual and Procedural Background

This is a costs judgment arising from two prior module judgments in a construction suit concerning the last will and testament ("the Will") of the Deceased. The central dispute was whether the devise phrased in the Will as "my…lands at Bealalaw (sic), Myshall in the County of Carlow" conveyed the entirety of the Deceased's lands or only those lands situate in one specified townland, with the remainder falling into residue to be divided among residuary legatees. The Plaintiff advanced a construction that the entire farm passed to him; a group of residuary beneficiaries (collectively "Defendant Group A") advanced a contrary construction. The first-named defendant acted in her capacity as executrix ("the Executrix").

In Module 1 (1 February 2024) Judge Egan held the Will ambiguous on its face and permitted the possibility of admitting extrinsic evidence under s.90 of the Succession Act 1965. Mediation in November 2024 failed. A Calderbank-style offer was made by the Plaintiff in November 2024; the Executrix broadly agreed but Defendant Group A did not accept. Some members of Defendant Group A later withdrew from participation; others continued. In Module 2 (14 November 2025) the court admitted and accepted extrinsic evidence given by Attorney Clarke (supported by a memorandum of 26 November 2019) and concluded that the Will conveyed all lands to the Plaintiff.

Legal Issues Presented

1. Whether the Plaintiff was "entirely successful" in the proceedings for the purposes of sections 168–169 of the Legal Services Regulation Act 2015.
2. Whether costs should follow the event or instead be paid out of the estate (and, if so, from which part of the estate), having regard to the particular nature and circumstances of the case and the conduct of the parties under s.169(1).
3. How costs should be allocated temporally and between (a) the Executrix, (b) the Plaintiff, (c) the Withdrawing Defendants and (d) the Remaining Defendants.

Arguments of the Parties

Executrix's Arguments

• The Executrix accepts she was correctly sued in that capacity and claims entitlement to her costs.
• She contends the Plaintiff was entirely successful and so presumptively entitled to costs under s.169(1).
• The Executrix argues the Remaining Defendants had actual knowledge of the testator's intention (via a meeting at The Hotel and later disclosure of Attorney Clarke's memorandum) yet pursued an interpretation contrary to that evidence for their own benefit, and so should be personally liable for costs rather than indemnified from the estate.
• Invokes the principle from Vella v. Morelli and Elliott v. Stamp to distinguish cases where costs are borne by the estate from adversarial inter-beneficiary litigation.

Plaintiff's Arguments

• The Plaintiff contends he was entirely successful overall and that costs should follow the event unless the unsuccessful defendants satisfy the court otherwise.
• He emphasises that Attorney Clarke's evidence was always likely to be dispositive, that Defendant Group A nonetheless contested the matter and impugned Clarke's integrity, and that they ignored the Calderbank offer.
• The Plaintiff seeks a personal adverse costs order against the Remaining Defendants, with costs charged on their gifts and personally made up if insufficient, and proposes temporal segmentation (joint and several liability up to 29 January 2025; thereafter as to those who continued).

Withdrawing Defendants' Arguments

• They submit their positions and procedural conduct differed materially from other members of Defendant Group A and that they accepted the Module 1 determination and ceased participation in Module 2.
• They argue their pursuit to the point of Module 1 was reasonable and pursued in good faith to enable proper administration; their costs exposure should be confined to the period they participated.
• They assert the informal meeting at The Hotel did not render Attorney Clarke's evidence inevitably admissible and that they could not respond to the Calderbank offer due to coordination and representation issues.
• They accept the Executrix's costs should generally be paid from the estate but contest liability for unnecessary items.

Remaining Defendants' Arguments

• They contend the proceedings were a construction/administration suit caused by the drafting of the Will and thus costs should be paid from the estate under s.168(1)(b), with reference to pre-2015 jurisprudence and Buckton v. Buckton categories.
• They maintain their conduct was reasonable and bona fide, that they did not fabricate evidence, and that Module 2 participation was legitimately necessitated by the court's decision to admit extrinsic evidence on a de bene esse basis.
• They assert the estate (and professional negligence remedies against Company A) is the appropriate source for costs, to avoid penalising beneficiaries who litigated in good faith.

Table of Precedents Cited

Court's Reasoning and Analysis

1. The court began by restating the statutory framework: costs are governed by ss.168–169 of the 2015 Act and Order 99, and decided issues by reference to leading authorities (including Higgins and O'Connell v. O'Connell).

2. The court characterised Module 1 as the critical event on whether extrinsic evidence under s.90 should be admitted; the Plaintiff prevailed on that question and was substantially successful at Module 1 and entirely successful at Module 2.

3. The court examined whether departing from the prima facie rule (costs follow the event) was justified by (a) the particular nature and circumstances of the case and (b) the conduct of the parties (s.169(1) factors).

4. On the nature and circumstances point, the court reviewed pre-2015 jurisprudence but followed O'Connell v. O'Connell that statutory discretion governs; it concluded the dispute was essentially a hostile lis inter partes between beneficiaries rather than neutral administration litigation and thus not of the type that mandates estate-borne costs as a rule.

5. On conduct, the court found the Remaining Defendants' persistence after Module 1, despite disclosure of Attorney Clarke's memorandum (sent March 2025) and the likelihood of Clarke's dispositive evidence, to be unreasonable under s.169(1)(a)-(c) and the principles in Elliott v. Stamp; their approach weighed strongly in favour of adverse personal costs consequences.

6. The Executrix occupies a sui generis position; absent exceptional circumstances her costs are generally recoverable from the estate to avoid disincentivising executorial duties.

7. Balancing the above, the court exercised its s.168(2) segmentation power to allocate costs temporally and by party: it protected the estate for Module 1 to a degree (awarding certain costs from the estate) but imposed adverse personal costs consequences on the Remaining Defendants for Module 2 and directed charging on their testamentary gifts with personal joint-and-several liability for any shortfall.

Holding and Implications

CORE RULING:

• The Executrix's costs – Module 1 costs awarded from the estate (to be met 50% from the Plaintiff's gift and 50% from the residue). Module 2 costs recoverable from the Remaining Defendants, charged on their testamentary gifts and personally (jointly and severally) for any shortfall.
• The Plaintiff's costs – No order for the Plaintiff's Module 1 costs up to 29 January 2025. Module 2 costs recoverable from the Remaining Defendants, charged on their testamentary gifts and personally (jointly and severally) for any shortfall.
• Withdrawing Defendants – Each withdrawing defendant bears their own Module 1 costs.
• Remaining Defendants – Personally liable for Module 2 costs of both the Plaintiff and the Executrix; such costs charged on their gifts under the Will and personally (jointly and severally) for any deficiency.

Implications: The effect is to protect the estate from depletion by the unsuccessful litigation posture of the Remaining Defendants in Module 2 while preserving a degree of estate funding for reasonable Module 1 litigation. The order allocates financial responsibility along temporal and party-specific lines. The judgment resolves costs between the parties as set out above; the court did not purport to lay down any categorical new rule beyond applying the statutory framework and existing authorities.