When Non-Parties Are Pulled Into Mediation: HHJ Paul Matthews’ Order in
Ivey v Lythgoe & Ors
On 12 September 2025, in the Business and Property Courts at Bristol, His Honour Judge Paul Matthews handed down a judgment that is likely to be studied by both probate practitioners and mediators for some time. The case, Ivey v Lythgoe & Ors [2025], concerned disputed wills, alleged negligence by a will-writing company, and—most intriguingly—the judge’s decision to join that company, Trust Inheritance Limited, into the litigation and require it to attend mediation.
This ruling is a striking example of how modern civil procedure is evolving in the wake of Churchill v Merthyr Tydfil CBC [2023] and subsequent reforms to the Civil Procedure Rules. It illustrates how the courts are prepared not only to direct parties towards mediation, but also to ensure that those on the margins—who may ultimately bear responsibility for costs or damages—are brought to the table.
The Factual Background
The dispute arose out of the estate of David Ivey, who died in 2023 unmarried and without issue. The claimants were his nephews and niece, the children of his late brother Russell. On intestacy, they would inherit his estate. But the picture was complicated by two wills: one made in 1994, and another in 2009.
- The 1994 will, drafted by PEP Consultancy Ltd, left the residue to David’s brothers Gerald and Russell, and to Janice Piper (the second defendant), then his partner. Questions arose as to whether this will was ever executed, and whether the testator’s instructions had been misrecorded.
- The 2009 will, drafted by Trust Inheritance Limited, appeared to exclude both Gerald and Russell, despite David’s handwritten letter suggesting he only intended to remove Janice and her family. The claimants alleged that the will-writers misunderstood his instructions, causing their side of the family to be cut out.
The claimants launched probate proceedings seeking either to revoke letters of administration, or to rectify the wills to reflect David’s true intentions. Alongside this, they issued a separate negligence claim against Trust Inheritance, alleging that its drafting errors deprived them of their inheritance and forced them into costly litigation.
The Application Before the Court
The immediate application before HHJ Matthews was to bring Trust Inheritance into the proceedings. The claimants sought either:
- Joinder as a costs-only party—so that, if negligence was established, Trust Inheritance could be made liable for costs under section 51 of the Senior Courts Act 1981; or
- Consolidation of proceedings—so that the probate/rectification claim and the negligence claim would run together.
Crucially, the claimants also sought an order that Trust Inheritance attend a mediation already scheduled for 17 October 2025 with the other parties.
Non-Party Costs and Joinder
The court reviewed the jurisdiction under section 51 of the 1981 Act, and CPR 46.2, to make non-party costs orders. Case law such as Deutsche Bank v Sebastian Holdings [2016] illustrates how the courts can, in appropriate circumstances, order someone not formally a party to pay costs, provided they were sufficiently connected with the litigation.
But HHJ Matthews noted an important distinction. In earlier cases, such as Re Bimson and Gerling v Gerling, solicitors who had erred in will drafting had effectively accepted responsibility and did not oppose non-party costs orders. Here, however, Trust Inheritance denied liability. It had not agreed to any such order, and no trial had yet determined negligence or causation. The judge concluded it was premature and inappropriate to make Trust Inheritance a costs-only party.
Why Consolidation Was Ordered
Instead, the judge ordered consolidation. This meant that the probate/rectification claim and the negligence claim would be treated as a single set of proceedings in the High Court. This approach was both procedurally tidy and substantively fair:
- It avoided running parallel claims in different courts, with overlapping evidence.
- It allowed all relevant parties, including Trust Inheritance, to be properly engaged in the process.
- Most importantly, it created jurisdiction for the court to order Trust Inheritance to participate in mediation, since CPR 3.1(2)(o) empowers the court to order “the parties” (not outsiders) to engage in ADR.
The Mediation Order
Having consolidated the claims, HHJ Matthews turned to the question of mediation. Following Churchill v Merthyr Tydfil, courts now have explicit authority to compel mediation where it is proportionate and appropriate. But here, the challenge was whether a newly joined respondent could be required to mediate on relatively short notice.
The judge struck a balance:
- He ordered the claimants to serve full particulars of their negligence case by 17 September 2025, so Trust Inheritance would know the exact allegations against it.
- He then directed that the mediation should go ahead on 17 October 2025, giving the respondent a month to prepare.
- He stayed the proceedings in the meantime, so that costs and judicial resources were not wasted while settlement was explored.
HHJ Matthews was candid about why this was the right outcome:
- The factual disputes were relatively narrow and well-documented.
- Costs would quickly outstrip the value of the estate if litigation continued.
- Two of the three parties had already agreed to mediate; adding the third was the logical step to maximise the chances of resolution.
- The case “cries out for mediation.”
Why This Matters
This decision is significant on several fronts:
- Expanding the reach of mediation orders
- Traditionally, only existing parties could be compelled to mediate. By consolidating proceedings, the court extended this power to a third-party will-writer whose alleged negligence was central to the dispute.
- It demonstrates judicial creativity in ensuring that all stakeholders are present at the negotiating table.
- The interplay of probate and professional negligence claims
- Disputes over wills often expose drafting mistakes. This judgment shows the court’s willingness to knit together probate proceedings with negligence claims against drafters, to avoid fragmented litigation.
- Cost proportionality
- The judgment reflects a pragmatic awareness that legal costs can dwarf the value of estates in dispute. Mediation is emphasised as the most sensible forum to resolve fact-sensitive, family-tinged litigation.
- Signals to will-writers and other professionals
- The case highlights the risks for non-solicitor will-writing companies. If their work is challenged, they may find themselves drawn directly into litigation and compelled to mediate.
Wider Context
The timing of the judgment is also notable. In October 2024, CPR 3.1(2)(o) was introduced, expressly allowing courts to order parties to engage in ADR. The present decision shows how quickly the judiciary is embracing that power.
Moreover, in the wake of Churchill, the courts are under increasing pressure to promote settlement. The Civil Justice Council has long encouraged greater integration of ADR. Here, the High Court applied those principles dynamically—ensuring not only the main protagonists, but also the allegedly negligent professional, had to sit around the mediation table.
Conclusion
Ivey v Lythgoe & Ors illustrates the modern court’s toolkit: consolidation to avoid duplication, joinder to capture all relevant players, and compulsory mediation to drive efficient resolution.
The case is a reminder that probate disputes are rarely just about dusty documents; they often intersect with professional negligence and costs liability. By compelling Trust Inheritance Limited—a non-party until now—to attend mediation, HHJ Matthews underscored a fundamental principle: where litigation is costly, fact-sensitive, and cries out for settlement, the court will not leave obvious stakeholders on the sidelines.
This pragmatic judgment should encourage parties, advisers, and professionals alike to recognise the central role of mediation in today’s civil justice system. The message is clear: if you are involved in the making of disputed documents, you may well be brought into the mediation room, whether you volunteer or not.