ON APPEAL FROM
THE HIGH COURT OF JUSTICE, CHANCERY DIVISION
SIR JOHN LINDSAY
Case No HC06C04217
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE THOMAS
LORD JUSTICE MOSES
| (1) PAUL JONATHAN HOWELL
(2) ALISON RUTH ROBINSON
(3) JOHN NEAL THOMPSON
(As trustees of the Captain Edward Joicey 1948 Settlement and the Major John Joicey 1968 Settlement)
|- and -
|(1) MARCUS LEES-MILLAIS
(2) LORNA MILNE JOICEY
(3) FIONA ASTRID LEES-MILLAIS
(4) HECTOR FORWOOD
(5) LUCINDA LORAINE NEWALL
(6) ALEXANDER NEWALL
Mr Alan Steinfeld QC (instructed by Harcus Sinclair) for the first and second respondents
Hearing date: 20th June 2011
Crown Copyright ©
The Master of the Rolls:
The original application
The negotiations about costs
"This offer is open for acceptance up to and including twenty one days from the date of receipt of this letter. It relates to the whole of the claim advanced by your client for her own costs of the … application and to [the trustees' costs]. Naturally in accordance with Rule 36.10 acceptance of this offer will mean that [Lorna] will be entitled to her costs of the disputed costs application up to the date on which acceptance is made."
i) The trustees would pay Lorna either "(a) … a sum representing 75% of her costs [of the application] to be assessed on an indemnity basis", or "(b) … the sum of £354,417.88 (being 75% of [her] payable costs [of the application] assuming 80% recovery", and
ii) The trustees would limit the costs of the application which they could recover to £45,000 from the 1948 settlement, in addition to the £205,000 from the 1968 settlement as proposed to Marcus.
The Judge's decision on costs
i) The April 2009 letter was not an offer within CPR Part 36 ("a Part 36 offer"), as (a) it related to a costs issue after the substantive issues had been determined, and (b) it failed to comply with CPR 36.2(c);
ii) Whether or not that was right, the April 2009 letter should be taken into account on the issue of costs, but it would be wrong to accord the trustees any costs as:
(a) It was not unreasonable for the respondents to have waited a year before accepting the offer contained in that letter;
(b) The offer in the March 2010 letter, which was accepted, contained better terms so far as the respondents were concerned;
(c) The trustees' change of lawyers would make any assessment of costs very difficult indeed.
Was the April 2009 letter a Part 36 offer?
"84. Any ambiguity in an offer purporting to be a Part 36 offer should be construed so far as reasonably possible as complying with Part 36. Once it is accepted that a time-limited offer does not comply with Part 36, one must approach the interpretation of the offer in this case on the basis that the party making the offer, and the party receiving it, appreciated that fact.
85. I agree that the normal effect of the phrase 'the offer will be open for 21 days' is that the offer is not open for acceptance after 21 days. However, …. the use of that phrase is consistent with a warning that the offer will be withdrawn after 21 days. Given the clear express intention of the respondent to make an offer complying with Part 36, it should be so construed."
In my judgment, that reasoning is inconsistent with the Judge's second reason for concluding that the April 2009 letter could not be a Part 36 offer.
Comparing the April 2009 offer and what was accepted in April 2010
The exercise of discretion with regard to the costs between May 2009 and April 2010
Two additional points