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(Family Division; 13 July 2007; Munby J)
While strongly deprecating any suggestion that trustees required to be joined as parties to ancillary relief proceedings merely because a trust point was being run, the judge noted that when there was a hostile trust dispute the claim could not usefully or effectively be litigated unless the trustees (absent the beneficiaries) were joined in the proceedings. In this case the wife had been claiming that the trusts were shams and had sought transfer of two properties in which the trust had beneficial interests; the appropriate course in a case such as this was to allow the trustees to intervene in the ancillary relief proceedings, as unless the trustees were joined, no decision would have been binding upon them. Therefore, notwithstanding an earlier protective costs order protecting the wife from paying the trustees' costs, the wife would be ordered to pay such costs with effect from a date that gave the wife a reasonable period within which to respond to the trustees' notice that they were seeking to be released from the protective costs order. Directly or indirectly, this family had incurred costs amounting to 41.5% of the matrimonial assets; as in too many so-called 'big money' cases, such costs were grossly disproportionate to either the amounts or the issues at stake. This wife, whose litigation conduct had led to her payment not only of her own costs, but also of a substantial proportion of the husband's and the trustees' costs had ended up spending over 50% of her final award on costs. That heavy price was the consequence of the misplaced zeal with which she had chosen to conduct a case built on very meagre foundations. It was to be hoped that others would pay heed, and that similar cases would in future be pursued with more circumspection.
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