O'Boyle v Wallis: the limits of personal liability for a representative's costs

How personally liable is someone who steps in to represent a deceased person's estate in litigation? That is the question at the heart of O'Boyle v Wallis [2026] EWHC 1386 (Ch), and Andrew Twigger KC's consequential judgement — following his earlier substantive decision in April — gives a careful answer that will interest anyone advising in contentious probate or estate administration.

The background is complex. Catherine O'Boyle had been appointed under CPR 19.12 to represent the estate of her late husband Paul in proceedings against Mary Vivien Wallis. She was also a claimant in her own right. The proceedings were ultimately struck out and costs were ordered against the estate. Master Kaye had treated the Appellant as personally liable for whatever costs were payable by the estate, on an indemnity basis. O'Boyle appealed, notwithstanding that she had since been made bankrupt. Twigger KC allowed the appeal in part in April, reducing her personal liability significantly and limiting it to the standard basis for the period she was actively involved as representative.

The June judgement addresses what happened next: the costs of the appeal itself, the quantum of any interim payment on account, and Mrs Wallis's application for permission to appeal two points.

The most practically significant issue concerns the indemnity principle. O'Boyle's legal fees had been paid by family members rather than by herself, and Mrs Wallis argued that this meant there was no liability to the solicitors and therefore no costs to recover. Twigger KC rejected that argument firmly. Applying Adams v London Improved Motor Coach Builders [1921] and confirmed more recently in Edwin Coe LLP v Popat [2013], the court held that a client is presumed personally liable for their solicitor's fees unless there is an express or implied binding agreement that they will never have to pay. Family members covering a fee that their relative was unable to pay due to a freezing order did not come close to satisfying that test. The indemnity principle was not infringed.

That conclusion is worth noting beyond the immediate facts. It confirms that costs recovery is not undermined simply because a third party has funded the litigation, provided the client retains a genuine legal liability to pay. The origin of the funds is, in essence, irrelevant.

On the question of an interim payment, Twigger KC declined to order the £45,489 sought by Mrs Wallis, settling instead on the £10,000 proposed by the Appellant. The reason was straightforward: no evidence had been provided about how much the former solicitors, TF, had paid in settlement of a wasted costs application. Since TF had remained instructed well into the period for which costs were now claimed, there was a real risk of double recovery. Without transparency on that point, it was not possible to make a reliable assessment.

That reasoning should prompt careful thought whenever a wasted costs order or third-party settlement sits alongside an ongoing costs claim. The court is plainly unwilling to order payment on account where the arithmetic cannot be properly verified.

Mrs Wallis's application for permission to appeal on the standing and abuse of process issues was refused. Twigger KC distinguished Heath v Tang on the basis that O'Boyle's interest in her role as representative was not purely financial and survived her bankruptcy. The abuse of process arguments, including a novel point based on Phipson on Evidence that had not even been raised at the original hearing, were given short shrift.

O'Boyle was awarded 80% of her costs of the appeal, summarily assessed at £3,599.90, to be set off against her liability to Mrs Wallis. It is a modest sum, but the principle it reflects is not: a representative who successfully challenges the basis of their personal costs liability is the successful party, whatever the residual quantum of that liability turns out to be.

O'Boyle v Wallis [2026] EWHC 1386 (Ch). Judgement of Andrew Twigger KC, 16 June 2026.