A successful claim by an adult child under the 1975 Act and the costs of failing to mediate: Rochford v Rochford
02 Feb 2021
James McKean, instructed by Tara McInnes of Shoosmiths LLP, represented the claimant in Rochford v Rochford.
This was a claim under the Inheritance (Provision for Family and Dependants) Act 1975 by an adult child against the estate of her late father (`the Deceased').
The Claimant received £25,000 under the Deceased's will. She was awarded an additional lump sum of £85,000 from a residuary estate of circa £193,000. Although the Claimant owned a freehold property and had had a difficult relationship with the Deceased, the Court found that her disability and income shortfall justified an award.
Recorder Williamson QC also made allowance for the success fee payable to the Claimant's solicitors and preferred Re H  EWHC 1134 (Fam) to Re Clarke  EWHC 1193 (Ch) in this regard.
While successful claims by adult children under the 1975 Act are relatively rare, significant awards can be made to compelling applicants. An obligation on the part of the deceased, and even a strong relationship between applicant and deceased, is not necessary if outweighed by other factors.
Similarly, capital assets will not prevent an award being made if they cannot easily be liquidated. Although the Claimant's property had been valued at £500,000, its short-term saleability was in doubt following the Grenfell Fire and there was a maintenance need in the interim.
This case is also a stark warning that tactical attempts to delay mediation can backfire badly. The Defendant refused to mediate for over a year, saying that the claim was weak and that more disclosure was needed. The Judge was unimpressed. A claim against a relatively small estate should have been mediated early before costs escalated. The Defendant's refusal, and failure to beat the Claimant's Part 36 offer, came at a high price: costs payable on the indemnity basis, interest payable on costs and judgment sum at 5%, and an additional penalty of 10% of the judgment sum.
Clients may be gratified to see their legal advisers `fighting their corner' in a 1975 Act claim by taking an aggressive stance in the pre-action stages and in correspondence. After trial - especially if that party is unsuccessful - such an approach may look distinctly unwise.
1975 Act claims are unpredictable. Parties need to mediate at the earliest opportunity.