Court of Appeal success for Andrew Williams in Brealey v Shepherd & Co

March 27, 2024

Andrew Williams has succeeded in the Court of Appeal in Brealey v Shepherd & Co [2024] EWCA Civ 303, a decision likely to become a leading case on the subject of the remuneration of trustees and executors.  Andrew led John Meehan from Kenworthy’s Chambers.

This case involved an estate mainly comprising a high value house.  Shepherd & Co Solicitors claimed £153,000 for the services provided by Mr Shepherd, a solicitor-executor.

Andrew Williams acted for one of the main beneficiaries, Mr Brealey, who issued an application for a Third Party Detailed Assessment of the costs (under s. 71(3) of the Solicitors Act 1974).  Mr Brealey denied that the estate was liable to pay the costs incurred by Mr Shepherd in his role as executor.  His reason was that the deceased’s will did not contain a clause entitling the executors to charge for their services.

The decision turned on two matters.

The first was whether Mr Shepherd’s firm could demonstrate that there was an agreement under section 29(2) of the Trustee Act 2000 entitling him to charge.  That in turn depended on whether that sub-section required that the  agreement be signed by Mr Shepherd’s fellow executor who did not take out a grant and who took no steps in the administration.

The second issue was whether the court should exercise its inherent jurisdiction (sometimes called the jurisdiction under Boardman v Phipps), to authorise Mr Shepherd to be remunerated. That involved identifying when the jurisdiction should be exercised, given the potential inconsistencies among the authorities.

The Court of Appeal found in favour of Andrew’s client, Mr Brealey, on all matters.  As for the first issue, it held that the written consent of the non-intermeddling executor was required under s. 29(2).  Regarding the second issue, the Court clarified when the jurisdiction should be exercised and it refused to exercise it so as to award remuneration.

The first instance decision in this case has already been extensively cited in textbooks.  The Court of Appeal decision now looks likely to become a leading case on the subject.

The hearing can be viewed here:

Andrew was instructed by Mr Will Jones of Jones & Co Solicitors.