The Cost of Litigation: Do Losing Representatives have to pay?
Introduction:
Everybody knows the basic rule on costs in hostile litigation – although costs are in the discretion of the court, the general rule is that the losing party pays[1].
But what if you’re a little bit different? What if you are the executor or administrator of an estate, a litigation friend, or a representative appointed under CPR 19.12? If you are, and you lose, do you still have to pay?
Guidance on this issue was handed down on 28th April 2026 by Andrew Twigger KC, sitting as a Deputy Judge of the High Court, in the case of O’Boyle v Wallis [2026] EWHC 951 (Ch) where the court considered an appeal on the issue of whether a 19.12 representative was personally liable for the costs of the claim which had largely been incurred during the claimant’s lifetime, before the 19.12 representative had been appointed.
CPR 19.12 provides –
Death
19.12 (1) Where a person who had an interest in a claim has died and that person has no personal representative the court may order–
(a) the claim to proceed in the absence of a person representing the estate of the deceased; or
(b) a person to be appointed to represent the estate of the deceased.
(2) Where a defendant against whom a claim could have been brought has died and
(a) a grant of probate or administration has been made, the claim must be brought against the persons who are the personal representatives of the deceased;
(b) a grant of probate or administration has not been made –
(i) the claim must be brought against “the estate of” the deceased; and
(ii) the claimant must apply to the court for an order appointing a person to represent the estate of the deceased in the claim.
(3) A claim shall be treated as having been brought against “the estate of” the deceased in accordance with paragraph (2)(b)(i) where –
(a) the claim is brought against the “personal representatives” of the deceased but a grant of probate or administration has not been made; or
(b) the person against whom the claim was brought was dead when the claim was started.
(4) Before making an order under this rule, the court may direct notice of the application to be given to any other person with an interest in the claim.
(5) Where an order has been made under paragraphs (1) or (2)(b)(ii) any judgment or order made or given in the claim is binding on the estate of the deceased.
Background to O’Boyle
In O’Boyle, the proceedings had originally been issued by Mr O’Boyle in 2020, with Mrs O’Boyle being subsequently joined as a second claimant. The conduct of the proceedings by the claimants was described as “chaotic” and very little had been achieved by the time Mr O’Boyle died suddenly and unexpectedly in December 2024. In advance of a hearing listed for April 2025, Mr O’Boyle’s daughter applied to represent her father’s estate pursuant to 19.12(1)(b), which application was unopposed and granted on the papers. At a hearing in July 2025 the second claimant and the 19.12 representative advised the court that they had no funds and wished to bring the proceedings to an end. The claims were therefore struck out, and the claimants were ordered to pay the defendant’s costs, to be assessed on the indemnity basis (due to the claimants’ conduct).
The 19.12 representative appealed against the order insofar as it obligated her to personally pay the costs.
The Judgment
The judge acknowledged the distinction between a personal representative of an estate (“PR”) and a 19.12 representative. Estate assets are vested in a PR who can access the same to fund her costs and indemnify herself for any adverse costs order. Where the PR is the claimant she is asserting a cause of action, legal title to which is hers, and whether she is the claimant or defendant, the PR is in a position to ascertain the extent of the estate’s assets and liabilities and can take appropriate steps to mitigate the risks, including petitioning for an insolvency administration order if appropriate.
In contrast, a 19.12 representative has no general rights or obligations in relation to the estate. The estate assets are not vested in her, and when representing a claimant, she is not asserting a cause of action to which she has title. She is not a party bringing her own claim but is simply assisting an estate which has no other representative by asserting its cause of action on its behalf. A 19.12 representative does not have automatic access to the assets of the estate to fund her costs and she cannot easily indemnify herself for any adverse costs orders.
As such, the court concluded:
These seem to me sound reasons in principle why the general rule that a Personal Representative is normally personally liable for costs should not apply to a representative appointed pursuant to CPR 19.12. (para 130)
When considering the position of a 19.12 representative, the judge found an analogy with litigation friends helpful, noting the case of Barker v Confiance Ltd[1] [2020] EWCA Civ 1112 in which Newey LJ concluded that there is a distinction to be drawn between the position of a claimant’s litigation friend and that of a defendant’s, in that liability for costs should typically be imposed on a claimant’s litigation friend, although with the important caveat that, when deciding whether to make such an order, the court is exercising a discretion and entitled to have regard to the particular circumstances of the case, whereas there is no presumption that a defendant’s litigation friend should bear costs which the defendant would have been ordered to pay if not a child or protected party. At paragraph 121 of O’Boyle it was said:
Amongst Newey LJ’s reasons [in Barker] for concluding that Morgan J had taken the wrong approach, he said in paragraph 63(iii) that there was force in the policy argument that children and protected parties need litigation friends, but “there must be a risk that, if a defendant’s litigation friend were unusually vulnerable to an adverse costs order, that would deter suitable individuals from taking on the role.” Similar policy considerations apply, in my judgment, to the position of a representative appointed pursuant to CPR 19.12.
It was the conclusion in O’Boyle that, when deciding whether a 19.12 representative should be personally liable for costs, the starting point ought to be the same as for a litigation friend, albeit that in every case the court is exercising a discretion and the ultimate question should therefore be “whether in all the circumstances it is just to make the order”. The judge favoured an approach which gives the court the flexibility to recognise that a representative who has assisted the parties and the court should not be unduly vulnerable to a costs order and found that:
… it will, in my judgment, typically be just to order a representative of a claimant appointed under CPR 19.12 to pay costs if such an order would have been made against the estate, but always subject to the court’s overriding discretion in the particular circumstances. That is principled and in accordance with the overriding objective, it seems to me, because it is generally the case that a claimant is in the driving seat; he can choose whether or not to proceed with a claim and, if the claimant proceeds, that will necessarily cause the defendant to incur costs. (para 138)
For costs orders against 19.12 representatives for a defendant the judge said:
… just as with a litigation friend, there is … no presumption that a defendant’s representative should bear costs which the estate would have been ordered to pay. Similar factors to those applicable to a litigation friend might justify such an order, including bad faith, improper or unreasonable behaviour, or the prospect of personal benefit. … This approach is principled and accords with the overriding objective, in my view, because a claimant who brings a claim against a defendant cannot reasonably anticipate that anyone other than the defendant might become liable for his costs if he wins. If the defendant dies, then provided the defence is thereafter conducted reasonably, liability for the claimant’s costs should come from the deceased defendant’s assets, which were always the potential pool for the claimant’s recovery of costs. If, however, the representative conducts the defence in bad faith, or improperly, or unreasonably, the representative will potentially have caused the claimant to incur costs over and above those which would always have been incurred simply because the claim had been brought. In those circumstances it is fair that the representative should have to bear those costs. (para 139)
Principles applied to the Facts
On the facts of the case, the judge noted that the Appellant was the 19.12 representative for a claimant, but that she had only been appointed on 14th March 2025. He further observed that it is of assistance to the court, and the other parties, that responsible individuals are appointed as representatives, who are willing to take a fresh view of the proceedings and, if appropriate, to discontinue them or agree to them being struck out, and in such circumstances “it is doubly important to treat representatives fairly by not imposing liability on them for costs which they did not cause.”
The judge noted that until the defendant heard of Mr O’Boyle’s death, she could not have expected to recover costs from anyone other than Mr and Mrs O’Boyle, and it would not be in accordance with the overriding objective to allow the defendant to also recover those costs from Mr O’Boyle’s daughter, merely because she was willing to act as a representative at a late stage of the claim.
The judge therefore directed that the Appellant was not personally liable for costs prior to 14th March 2025. From the date of the appointment as 19.12 representative, the judge found no reason to depart from the general rule that, as a claimant’s representative, the Appellant should be liable for the costs, along with Mrs O’Boyle and Mr O’Boyle’s estate.
Postscript: Directions as to Costs
In deciding O’Boyle, the court considered the case of Bourlakova v Bourlakov [2024] EWHC 1937 (Ch) in which a defendant’s 19.12 representative, who was an independent professional whose costs were being indemnified by the claimants, sought an order, four months into his appointment, that he was not personally liable for any costs orders made against the estate. At paragraph 71 of O’Boyle, the judge noted that any 19.12 representative could seek directions as to whether or not she should have liability as to costs. Given the conclusions of the court in O’Boyle, this would not be usually appropriate for a claimant’s 19.12 representative, but for those representing a defendant, it is certainly something to consider seeking upon appointment.
Nicola Phillipson TEP
Parklane Plowden Chambers
30th April 2026
[1] Yes I know there are lots of exceptions particularly for a probate and trusts lawyer – but that’s a different article to be written on a different day
[2] Also known as Glover v Barker
