THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

H.C.A No. S 1016 of 2003

CARLUS MEDFORD
(an infant by his mother and next friend
BERNADETTE PERSAD)
Plaintiff
AND
DULCIE SAITH otherwise DIANE SAITH
(Legal Personal Representative of the Estate of
CARLTON MEDFORD, deceased)
Defendant

BEFORE THE HONOURABLE MADAM JUSTICE A. TIWARY-REDDY

SUPPLEMENTAL JUDGMENT

1. Earlier this year this Court delivered a written judgment in which, inter alia, the
Plaintiffs claim to revoke a grant of probate was dismissed. Further the Court
asked to hear Attorneys on the issue of costs.

2. Mr. Seunath SC for the Defendant submitted there was no reason for the Court to
deviate from the general rule that costs should follow the event and further, that
costs should not be paid out of the estate.

Mr. Rambally for the Plaintiff

countered that the Court should consider all the circumstances and that the
challenge to the will was not only to due execution, but also to want of

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testamentary capacity and to want of knowledge and approval. Therefore the

Plaintiff should not be condemned in costs as it was not unreasonable for the
Plaintiff to contest the validity of the will.

3. This action was filed and tried under the Rules of the Supreme Court 1975. Order
62 Rule 3 (1) and (2) provide:
ENTITLEMENT TO COSTS
When Costs to Follow the Event
3 (1) Subject to the provisions of this Order, no party shall be
entitled to recover any costs of or incidental to any proceedings from
any other party to the proceedings except under an order of the
Court.
(2) If the Court in the exercise of its discretion sees fit to make any
order as to the costs of or incidental to any proceedings, the Court
shall subject to this Order, order the costs to follow the event, except
when it appears to the Court that in the circumstances of the case
some other order should be made as to the whole or any part of the
costs.

4. It is trite law that costs are in the discretion of the Court. Further the general rule
is that costs follow the event. Mr. Rambally submitted that if the Court was
minded to order costs in favour of the Defendant, such costs should be paid out of
the estate of the Deceased, Carlton Medford and not by the Plaintiff himself. The
Plaintiff was aged 13 when the Deceased died and aged 15 when this action was
commenced by his mother on his behalf as he was then still an infant. While this
action was on-going the Plaintiff attained majority and adopted the action in his
own right.
5. The Plaintiff consistently maintained that the Deceaseds estate was not very
large. The principal asset was the property in which the Deceased, the Plaintiff

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and the Plaintiffs mother were living, when the Deceased died. Further in the
will under challenge the Deceased had devised that very property to his adult
daughter Carla, who was then living in Florida and had left only $5,000.00 for the
Plaintiff, his then infant child.
6. This Court adopts the following statement on Costs at pages 25 to 26 by
Sharma JA, as he then was, in Civil Appeal No. 138 of 1995 Elias v Elias:
THE LAW COSTS:

The question as to what order the Court should make as to costs is

discussed in

many cases. Costs in a probate action are in the discretion

of the Court (see 17 Halsburys Laws of England 4th Edition paragraph

785; Parry and Clark 9th Ed. Pages 200 202). The rule as to costs is set
out in Spiers v English [1907] P 122 in the headnote which reads thus:
The two main principles which should guide the Court in
determining the costs in a probate suit are not to follow the
event are, firstly, where the testator or those interested in the
residue have been the cause of the litigation; and, secondly,
if the circumstances lead reasonably to an investigation in
regard to a propounded document. In this latter case the
costs may be left to be borne by those who incur them; in the
former, the costs of unsuccessfully opposing probate may be
ordered to be paid out of the estate. (See also Mitchell v
Gard (1863) 3 Sw. & Tr. 275 at page 278 Sir James Wilde
P.)

There are at least two local authorities at first instance in which the question of
costs was fully reviewed (see Headlie v Arneaud (1966 69) Juliens Rep. Part
11 2580 de Labastide J. and Collens v Collens et al HCA No. 2088 of 1969

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Judgment No. 2 dated 4th June, 1973 des Iles J.) There are also two judgments of
our Court of Appeal in which the question of costs was fully dealt with (see
Moonan v Moonan (1963) 7 WIR 420 at 429 D-11 and De Nobriga v De Nobriga
(1967) 12 WIR 342. The principles to be deduced from these authorities are:

(i)

In probate actions costs are always in the discretion of the Court; but
unless there is good and sufficient reason to order otherwise costs, ought
to follow the event (Wiseman v Wiseman (1866 LR 1 P&D 351).

(ii)

If the cause of the litigation takes its origin in the fault of the testator
(Croft v Croft (1865) 4 Sw. & Tr. 10) or those interested in the residue the
costs may properly be paid out of the estate.

(iii)

If there is sufficient and reasonable ground to question either the

execution of the will or the capacity of the testator, or to put forward a
charge of undue influence or fraud the losing party may properly be
relieved from the costs of his successful opponent.

7. In the Statement of Claim filed on the 19th day of September, 2003 the Plaintiff
alleged fraud on the part of the Defendant to the effect that the alleged will had
been drawn up by the Defendant after the death of the Deceased. The Statement
of Claim was amended on 19th day of February, 2004 when the said allegation of
fraud was withdrawn. Mr. Rambally submitted that the allegation of fraud had
been withdrawn very early on but that there was sufficient reason to challenge the
validity of the will since the Deceased was a very sick man when the will was
allegedly made and in which the Deceased had devised the family home to an
adult child while his infant child (the Plaintiff) and his common-law wife had no
other home.

8. And at pages 28-29 (in Elias v Elias above) Sharma JA continued;

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In my judgment the true question which the judge should have

posed was whether there was sufficient and/or reasonable justification to

initiate proceedings questioning the validity of the contested will; not
whether, the considerable time, for which the case lasted or the benefits
and assistance he derived on the issues of credibility and propriety- which
were so profusely elucidated by both sides.
There must be good reason, for the appellant to have some
justification for the challenge. If he does not, the estate cannot be depleted
or mulcted in costs, on some whim, fancy or vague suspicion that the will
is invalid

9. This Court has noted that there was considerable medical evidence from two
specialist doctors, Dr. Maria Bartholomew and Dr. Alan Patrick who were
extensively cross-examined on the mental capacity of the Deceased. Having
considered all the evidence this Court concludes that there was sufficient and/or
reasonable justification to initiate proceedings questioning the validity of the
contested will.
10. Accordingly this Court orders that the Defendants costs of this action are to be
taxed and paid out of the estate of the Deceased.

Dated the 7th day of October, 2010

Amrika Tiwary-Reddy
Judge

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