Probate Costs Recoverable Where Grant Obtained Exclusively For Litigation

THE PERSONAL REPRESENTATIVES OF THE ESTATE OF MAURICE HUTSON (DECEASED) & OTHERS V TATA STEEL UK LTD [2025] EWHC 1594 (SCCO)

In British Steel Coke Oven Workers Litigation [2025] the court considered (amongst other things, including hourly rates) whether probate costs were recoverable as individual costs in group litigation. The claims, brought by workers exposed to emissions at coke oven plants, were settled under a GLO, with 20 sample cases selected to determine costs issues. The defendant challenged the recoverability of probate costs. Senior Costs Judge Rowley held that probate costs were recoverable where grants were obtained for litigation purposes, setting a low evidential threshold: a personal representative’s confirmation that the grant was for litigation would suffice. The judge found the detailed witness evidence from solicitors more than adequate to establish this, allowing the claims in principle. The ruling clarified that such costs, ranging from nil to £2,000 in profit costs and £10 to £655 in disbursements, were properly categorised as individual costs under the GLO where litigation was the sole purpose. The defendant’s broader challenge to recoverability was rejected.

“The managing judge, Turner J, and indeed the parties themselves, were clear that a grant was required for any claimant to take part in these claims. If the only reason for the claimant to obtain the grant was for this purpose, then the reasonable costs of doing so would be recoverable. If a grant was obtained to administer the estate, then no more than the costs of obtaining a copy could be claimed in the litigation."

Citations

Giambrone v JMC Holidays Ltd (formerly Sunworld Holidays Ltd) [2002] EWHC 495 (QB) Where individualised routine correspondence is generated for multiple claimants within group litigation, a notional time allocation per claimant may be applied, provided the correspondence required some case-specific attention. Mosson v Spousal (London) Ltd [2016] EWHC 54 (QB) The cost of obtaining a grant of probate is not recoverable as damages in a claim under the Law Reform (Miscellaneous Provisions) Act 1934; however, such costs may be claimed as litigation costs where the grant is required solely for pursuing the litigation. Crane v Canons Leisure Centre Ltd [2007] EWCA Civ 1352; [2008] 1 WLR 2549 Distinguishes between profit costs and disbursements for the purpose of recoverability, holding that items which are part of a solicitor’s professional duties and routinely performed in-house should generally be claimed as profit costs. Pan-NOx Emissions Group Litigation [2024] EWHC 1728 (KB) Hourly rates claimed for common costs work in group litigation may in some instances exceed those reasonably allowed for individual client work, depending on the nature and complexity of the task performed. Giambrone v JMC Holidays Ltd (formerly Sunworld Holidays Ltd) (QB) (20 December 2002) Group correspondence using standardised text with limited customisation may reasonably be claimed against individual costs on a reduced time basis, recognising the administrative efficiency and individual relevance.

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Key Points

Where co-worker evidence is obtained primarily to support a deceased or living claimant’s individual exposure and causation case, its costs are recoverable as individual costs, even if the same evidence may incidentally assist other claims. [55–60]
The reasonableness of hourly rates in group litigation is assessed having regard to the usual CPR 44.4 factors, including complexity, value and skill required, and is not necessarily reduced on the basis that significant common costs have been agreed separately. [16–29, 40–47]
3. The reasonable costs of obtaining a grant of probate are recoverable as individual litigation costs where the grant was obtained for the purposes of pursuing litigation, with the court applying a practical approach to evidence of this purpose. [65–71]
Administrative correspondence generated through semi-automated means (e.g., “MailMerge”) may be recoverable as individual costs where there is evidence of some case-specific input and the work is not fully generic in nature. [72–76]
The court will assess whether costs claimed as individual costs in a group litigation setting are properly so categorised, having regard to the definition of common versus individual costs under the terms of the Group Litigation Order. [6–10]

“In my view, the bar for establishing that the grant was obtained for the purposes of the litigation is not a particularly high one. If the personal representative or administrator attended court on the assessment of their costs, it would require no more than their confirmation that the grant had been obtained for the litigation for the costs of so doing to be allowed in principle ... The question is really how much evidence is required to establish that the claimant would not have sought a grant if it were not to make a claim?... the witness evidence of the two solicitors in these cases which is both detailed and backed by supporting documents is more than sufficient in my judgment to establish these claims.”

Key Findings In The Case

The evidence provided by co-workers in support of deceased or living claimants was deemed to have been obtained primarily for the purpose of establishing those specific individuals’ exposure and causation, and thus the associated costs were properly recoverable as individual costs, notwithstanding any secondary benefit to other claims in the group litigation [55–60].
The hourly rates claimed by the solicitors acting for the claimants—Hugh James and Irwin Mitchell—were held to be reasonable for the individual work undertaken in these claims, having regard to the complexity and value of the litigation and the requisite skill and expertise, and were not to be reduced merely on account of significant common costs having already been agreed and paid [40–47].
Where a grant of probate or letters of administration was obtained for the dominant purpose of facilitating the conduct of the litigation on behalf of a deceased claimant’s estate, the court held that the associated costs were recoverable as individual litigation costs and not excluded merely because grants of representation can also serve general estate administration purposes [65–71].
The court found that correspondence described as “MailMerge” did involve individualised input in each claimant’s case and was accordingly recoverable as individual costs, albeit at a reduced rate of two minutes per item rather than full routine rates, reflecting the semi-automated nature of the work [72–76].
The court held that in assessing whether costs fall within the category of “individual” or “common” under the Group Litigation Order, the determining factor is the purpose and context of the work undertaken; costs linked to establishing liability and causation specific to an individual claimant remain individual costs, even if the material has potential relevance to multiple claims in the group [6–10].

“In my view, the bar for establishing that the grant was obtained for the purposes of the litigation is not a particularly high one. If the personal representative or administrator attended court on the assessment of their costs, it would require no more than their confirmation that the grant had been obtained for the litigation for the costs of so doing to be allowed in principle.””

Background

These proceedings concerned the assessment of costs arising from the British Steel Coke Oven Workers Litigation, a substantial body of claims brought by workers (or their estates) against Tata Steel UK Ltd and its predecessors. The claims, which began in 2012, related to respiratory diseases and skin cancer allegedly caused by exposure to emissions at coke oven plants. Following an application in 2015, a Group Litigation Order was made in 2017 by Senior Master Fontaine.

The litigation involved over 200 claimants represented by two firms of solicitors – Hugh James and Irwin Mitchell – in roughly a 3:1 proportion. The GLO proceedings continued until 2022, when an order was made for the claimants to pursue their claims through an agreed scheme. All claims were concluded by 2024 for an aggregate sum of approximately £3.5 million.

The common costs up to the implementation of the scheme had been agreed at £8.5 million, with further common costs from 2022 to 2024 remaining unresolved. To address the individual costs of claimants efficiently, the parties selected 20 sample claimants (12 from Hugh James and 8 from Irwin Mitchell) with the intention that court decisions on these cases could be extrapolated to all claimants. Based on the sample bills, the defendant calculated that individual costs across all claimants might total £8 million.

On 7 February 2025, the court made directions for the determination of four preliminary issues, with provision for detailed line-by-line assessment of four sample bills at a later date. The hearing of the preliminary issues took place over three days in April 2025 before Senior Costs Judge Rowley.

Costs Issues Before the Court

The court was required to determine four preliminary issues agreed between the parties:

- First, the appropriate hourly rates for the solicitors’ work on individual costs. Both firms claimed identical rates that remained unchanged throughout the 12-year period of the litigation, with Grade A at £315, Grade B at £278, Grade C at £233, and Grade D at £147. The defendant offered significantly lower rates of £261, £218, £178, and £126 respectively.
- Second, the recoverability of costs for obtaining evidence from co-workers. This issue arose particularly in Hugh James bills, where substantial time was claimed for taking witness statements from colleagues of the claimants. The defendant initially challenged whether such work constituted individual costs or common costs (which had already been agreed), before shifting to argue about the extent rather than the principle of such work.
- Third, the recoverability of probate costs. Approximately half the test cases included claims for obtaining grants of probate or letters of administration, with profit costs ranging from nil to just under £2,000 and disbursements from £10 to £655. The defendant challenged whether these costs were properly recoverable in the litigation.
- Fourth, the recoverability of items claimed as “MailMerge” by Hugh James. These comprised 223 items totalling 22.2 hours across the 12 Hugh James claimants. The defendant contended these represented automated correspondence that should be treated as common costs.

Additionally, the court was asked to consider the proper categorisation of costs as individual or common costs, as defined in the GLO. Individual costs were those “incurred in respect of any individual claimant in relation to matters which are personal to that claimant”, whilst common costs were “all costs other than Individual Costs”.

The Parties’ Positions

On hourly rates, the claimants argued that the rates claimed were justified by reference to the seven factors in CPR 44.4. They emphasised the complexity of longtail industrial disease litigation, the specialist expertise required, and the value of the claims (averaging £87,000 on their calculation). They relied on Master McCloud’s 2019 summary assessment where similar rates had been allowed. The claimants also criticised the defendant’s conduct in requiring individual proof of each claim despite the GLO framework.

The defendant contended for lower rates based on the 2021 Guideline Hourly Rates, arguing these already incorporated an enhancement from the 2010 rates. They emphasised that the 2022 scheme had streamlined the claims process, reducing complexity. The defendant argued that the global settlement value of £3.5 million (with individual claims ranging from £3,700 to £31,000) indicated lower value claims requiring lower rates. They also suggested that common costs work might justify higher rates than individual costs work.

Regarding co-worker evidence, the claimants maintained that witness statements were necessary to prove individual claims, particularly for the 15 deceased workers among the 20 sample cases. They argued that the defendant’s own position, as expressed in Matthew Harrington’s witness statement, required individual proof of exposure for each claimant, making co-worker evidence essential for individual costs.

The defendant’s position evolved from initially challenging all co-worker evidence as common costs to accepting the principle but questioning the extent. They argued that general evidence about plant conditions should be treated as common rather than individual costs, particularly given the disparity between Hugh James and Irwin Mitchell’s approaches.

On probate costs, the claimants argued that where grants were obtained exclusively for litigation purposes, the reasonable costs were recoverable. They provided witness evidence detailing estate sizes and explaining why grants would not otherwise have been required. The defendant relied on Mosson v Spousal (London) Ltd, arguing that probate costs could not be recovered as damages and questioning how claimants could prove grants were obtained exclusively for litigation.

For MailMerge items, Hugh James explained these were not fully automated letters but required individual “topping and tailing”. They claimed these at 2 minutes per item rather than the standard 6 minutes for routine correspondence. The defendant maintained these were archetypal common costs, being standardised correspondence to groups of claimants using Microsoft Word’s mail merge feature.

The Court’s Decision

Senior Costs Judge Rowley allowed the hourly rates as claimed. He rejected the defendant’s argument that the 2022 scheme had simplified these cases, finding that claimants still needed to prove duty, breach, and causation individually. The judge concluded that “these claims were no different from claims which were regularly brought by firms instructed by trades unions against large manufacturing employers on behalf of their individual members.”

The judge found no justification for different rates between common and individual costs work, noting that the defendant’s own solicitors charged the same rates for both types of work. He considered the claims to have “all the complexity of longtail disease litigation” and that the specialist expertise of Grade C and D fee earners who conducted most of the work justified the rates claimed.

On co-worker evidence, the judge found entirely in favour of the claimants. He held that evidence supporting deceased claimants’ cases was properly categorised as individual costs, even if it might have secondary benefits for other claims. The judge stated: “The primary purpose of the evidence was to provide sufficient information for the individual claimant to be able to establish the breach of duty and the damage caused. That should be sufficient for it to be claimed as individual costs.”

The judge rejected any attempt to apportion co-worker evidence between individual and common costs, finding such division would be impractical and inappropriate. He specifically referenced the example of David Ferris’s witness statement, which was originally produced for his own claim but later amended to support another estate’s claim, illustrating the difficulty of any meaningful apportionment.

Regarding probate costs, the judge established that these were recoverable where grants were obtained for litigation purposes. He set a relatively low evidential threshold, stating: “If the personal representative or administrator attended court on the assessment of their costs, it would require no more than their confirmation that the grant had been obtained for the litigation for the costs of so doing to be allowed in principle.” The detailed witness evidence provided by the solicitors was found more than sufficient to establish these claims.

On the MailMerge issue, the judge accepted Hugh James’s explanation that these were not fully automated letters. He approved the two-minute charging approach, previously endorsed by Nelson J in Giambrone v JMC Holidays Ltd, as “a reasonable approach to picking up the time on the individual case without claiming full routine letters.” This allowed recovery as individual costs whilst recognising the partially standardised nature of the correspondence.

The judge declined to make definitive rulings on the specific categorisation challenges in the Bennett and Dawson cases, providing only provisional indications given the limited submissions made. These matters were left for determination at the subsequent detailed assessment hearings.

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