The High Court has held that different beneficiaries involved in litigation about a family trust who were separately represented could not recover all their legal costs. Although it initially appeared that their interests would conflict so that separate representation was necessary, as soon as the interests became aligned, separate representation exceeded what was reasonably necessary to protect the different beneficiaries' interests. From the point of alignment, the additional costs in excess of what would have been incurred if they had instructed a single firm of solicitors were disallowed. In apportioning allowable costs between the two law firms, the judge analysed how the tasks involved had been divided between them rather than simply looking for the extent of duplication.

This case provides a useful reminder that the costs of separate representation in trust litigation, even where it appears that this may be necessary to deal with conflicts arising from different family factions, may not be recovered in full. The same issue may arise where different trustees seek separate representation. Where claimants in litigation are separately represented it will be important to consider, at each stage, whether using more than one law firm is necessary so that each client can be advised about the potential impact on costs.

Case: Ong and others v Ping [2015] EWHC 3258 (Ch) (Bailii).