Beddoe applications – still fit for purpose?

Ten Old Square’s Eason Rajah QC examines whether Beddoe applications are still relevant or whether they should be brought in line with other applications for directions

Since the case of Re Beddoe [1893] 1 Ch 547 it has become accepted that costs incurred by trustees who bring or defend hostile litigation unsuccessfully are costs which are prima facie not properly incurred and therefore cannot be recouped from the trust fund pursuant to their indemnity. A trustee is not protected merely because he acts on legal advice. It has been said fairly recently that a trustee who has pursued or defended an action unsuccessfully is likely only in exceptional circumstances to be able to show that his costs were properly and reasonably incurred (see Bonham v Blake Lapthorn Linell [2007] EWHC 2513 (Ch) at para 123). Consequently, trustees are usually advised to obtain the consent of their beneficiaries, or an indemnity from one or more of them. In the last resort, trustees are usually advised to obtain prospective costs protection by bringing an application for directions as to whether or not the claim should be litigated – a Beddoe application.