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The Risks of Going to Trial

View profile for Richard Kerry
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The recent High Court case of Winter v Cutler caught my eye, not simply because the property at the centre of the dispute is on the road where I grew up, but because it is one of the best examples I have ever seen of why litigation should almost always be avoided, if at all possible.


The case centred around who would inherit a bungalow in Leigh-on-Sea in Essex, worth approximately £280,000.   The married couple who owned the bungalow (Mr and Mrs Scarle) each had a daughter from a previous relationship.   Mr and Mrs Scarle both died from hyperthermia at the property in October 2016.  Under the laws of inheritance whichever of the couple died last would have inherited the property and in turn passed it on to their daughter.


The forensic experts who gave evidence during the trial were not able to say definitively which of Mr and Mrs Scarle had died first.   In such circumstances the Courts will follow the Law of Property Act 1925 which states that the younger person (in this case Mrs Scarle) is deemed to have outlived the older.    In Winter v Cutler the High Court followed this rule, which meant that Mrs Scarle’s, daughter (Mrs Cutler) inherited everything. 


Mr Scarle’s daughter (Mrs Winter) had sought to argue that the expert evidence suggested that her stepmother had died first, due to the degree of decomposition affecting her body.   However, the High Court found that this evidence was not conclusive as to who had died first.  


In his decision the Judge stated, “This claim should never have got to trial”, a sentiment I entirely agree with.    Mrs Scarle’s daughter had made numerous attempts to settle the case, including suggesting that the assets be divided equally between the stepsisters.  Mr Scarle’s daughter was criticised by the Judge for having refused, “to make any reasonable attempt to engage in settlement negotiations at any stage”. 


The result is that Mrs Scarle’s daughter stands to receive the entire Estate and Mr Scarle’s daughter has been ordered to pay a minimum of £55,000 in costs to her stepsister, while her own legal costs are approximately £95,000.   This means the High Court dispute will have cost her at least £150,000 in circumstances when she could have received approximately £140,000.


While solicitors can only act on the instructions of their clients Bell Lax would have made it abundantly clear to Mr Scarle’s daughter that taking the case to trial and refusing clearly reasonable attempts at settlement by her stepsister, carried a significant risk in what was an all-or-nothing case.


Mrs Scarle’s daughter had also offered mediation which had also been refused by her stepsister. We have significant experience of probate and inheritance disputes at Bell Lax and a case like this screamed out for mediation, rather than gambling everything at trial.