S.71(3) Costs: When Beneficiaries Pay Personally — Tucker v Howe [2026]
Detailed Assessment — 2026-02-04
Beneficiaries challenging costs under s.71(3) can be personally liable for costs — not just the estate. This case saw claimants hit with £132,000+ on an indemnity basis for unreasonable conduct.
The Key Point
When beneficiaries challenge costs under s.71(3) of the Solicitors Act 1974, they risk personal liability for the costs of the assessment itself. Costs Judge Leonard made this starkly clear in Tucker & Anor v Howe, ordering the claimants to pay £132,400 (exclusive of VAT) on an indemnity basis for the costs of the detailed assessment proceedings.
The Facts
The claimants were two of four equal residuary beneficiaries of Mr Howe's estate. They brought s.71(3) proceedings challenging the costs of Mr Mark Keeley, the former administrator of the estate and a partner at Freeths LLP. The assessment took nine days of court time due to the claimants' belligerent approach, including 67 pages of Points of Dispute that accused Mr Keeley of systematic overcharging without justification.
The Costs Decision
The administrator's bill of £147,436.33 was assessed at £129,686.76 — a reduction of less than 12%. However, the real sting for the claimants was the costs of the assessment itself. Costs Judge Leonard found the claimants' conduct unreasonable to a high degree and ordered them to pay £132,400 (exclusive of VAT) on an indemnity basis.
Crucially, the court held that this liability fell on the claimants personally, not on the estate. This was because they had brought the proceedings in their capacity as beneficiaries (the only capacity in which s.71(3) allows them to bring such claims), not as executrices.
Settlement Offers
The judgment reveals that the claimants, without making any attempt at negotiation themselves, had rejected three attempts by Mr Keeley to settle the costs dispute for less than he was ultimately found to be due. Had they engaged with these settlement offers, nine days of court time could have been avoided.
The Practical Lesson
Beneficiaries considering s.71(3) proceedings must understand three things:
First, the costs of the assessment fall on you personally, not on the estate. The statutory framework makes clear that s.71(3) applications are brought by beneficiaries in their capacity as beneficiaries — and the costs liability follows that capacity.
Second, rejecting reasonable settlement offers without engaging in negotiation will be punished. The court takes a dim view of parties who press on to a contested hearing when compromise was available.
Third, unreasonable conduct in the assessment process means indemnity costs. Here, the hyperbolic and unjustified allegations against Mr Keeley contributed to the court's decision to order the higher basis.
Conclusion
This is a cautionary tale for any beneficiary tempted to challenge an administrator's costs. The s.71(3) jurisdiction carries real financial risk: not only might you fail to reduce the costs significantly, but you may end up paying substantial costs of the assessment personally. The £132,400 bill for the assessment process — exceeding the amount by which the administrator's costs were reduced — demonstrates the potential for pyrrhic victory.
Full judgment: Tucker & Anor v Howe [2026] EWHC 208 (SCCO)
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