A recent case illustrates the need for ADR in inheritance act cases. In Weisz v Weisz & Ors, Mr Justice Francis was hearing an application for interim provision pursuant to section 5 of the Inheritance (Provision for Family and Dependents) Act 1975.
Mr Justice Francis: expressed concern, ‘if not astonishment’, at the level of costs for the application.
The judge said that:
‘The claimant’s costs – and this is just for today and not the claim overall – are just over £18,000. The costs of the third and fourth defendants, who are two of the children of the deceased, are £37,880. Remarkably, I am told that the executors of the estate do not even know what their costs of today are.”
‘But, if I take the executors’ costs as being the same as the claimant’s (and I note that the claimant has instructed – I hope I can say this without any disrespect – much less expensive solicitors than the third and fourth defendants), then that means that the overall costs of today are in the order of £74,000.’
Set in the context of the total amount being claimed by the claimant – a £75,000 lump sum and £8,511 a month, ‘it cannot be proportionate for so much money to be spent on this issue and it is very sad indeed that the parties have been unable to settle today’s application’.
The judge stressed that he was not criticizing anyone in particular, but hoped the parties reflected on the fact that ‘if this were a commercial deal rather than a family row, they would not have spent this amount of money on this litigation because it would not be commercially sensible to do so, and the only way they are going to settle this litigation – whether it be next week or some time next year – rather than fight the case, the only way they are going to do so is by standing back and taking a commercial view, on advice’.
Francis J also highlighted the benefits of private family dispute resolution or mediation saying:
“I have already said during the course of discussion in court today, and repeat, that there are many forms of dispute resolution available, which are very well known to all the lawyers in this case, and I would hope that a private FDR or mediation would effectively settle this case: because somebody sitting as, whether it is a mediator or a judge or a chair of the meeting, would be able to express a very frank view, having heard not only what I have heard, which is the parties’ open positions, but having got behind the detail and looked at their “without prejudice” positions.
That is the beauty of that process. The person who chairs those meetings really knows what people are thinking rather than seeing on paper what their positioning or posturing is, and when I say “posturing” I do not mean that there is anything dishonest about it but we all know in litigation there is the open position, which is one thing, and the “without prejudice” position, which of course I shall not and cannot know, which is something completely different in most cases.”
So this is another endorsement of ADR following on from the case of Lomax v Lomax which opened up the door for mandatory ADR in inheritance act cases in the form of early neutral evaluation.
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