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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> James v James & Ors [2018] EWHC 242 (Ch) (13 February 2018) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2018/242.html Cite as: [2018] EWHC 242 (Ch), [2018] 1 Costs LR 175 |
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CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
2 Redcliff Street, Bristol, BS1 6GR |
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B e f o r e :
(sitting as a Judge of the High Court)
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Raymond Allen James |
Claimant |
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- and - |
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Karen James Serena Underwood Sandra James |
Defendants |
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Steven Ball (instructed by Burges Salmon) for the Defendants
Hearing date: 19 January 2018
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Crown Copyright ©
HHJ Paul Matthews :
"We are, therefore, authorised to make your client the following offer to settle under Part 36 (the "Offer")."
And paragraph 2.2 of the letter states:
"The Offer is made pursuant to Part 36 of the Civil Procedure Rules and it is intended to be a claimant's Part 36 offer. Accordingly, if your client accepts the Offer within 21 days (the "Relevant Period") your client will be liable for our client's costs, in accordance with CPR 36.13."
"The Offer is to settle the whole of the Counterclaim and the Claims on the following terms:
[ ... ]
Your client is to be liable to pay our client's costs of the Claim and the Counterclaim on the standard basis, to be assessed if not agreed, up to the end of the Relevant Period or, if later, the date of service of notice of acceptance of this Offer."
"34. I therefore conclude that a term as to costs is not within the scope of a Part 36 offer. That does not of course mean that a claimant cannot make an offer which includes a term as to costs; the court will have regard to that in exercising its usual discretion in relation to inter partes costs at the end of the case."
"... where a Part 36 offer is accepted within the relevant period the claimant will be entitled to the costs of the proceedings … up to the date on which notice of acceptance was served on the offeror."
But, as noted above, paragraph 3 of the letter offered to settle on terms which included a term that the claimant was to be liable to pay the defendants' costs of the Claims and the Counterclaim
"up to the end of the Relevant Period or, if later, the date of service of notice of acceptance of this Offer."
"where an offer clearly expresses an intention that it is intended to comply with Part 36, the court should hold it to do so if at all possible".
Accordingly, the defendants submit that the phrase "or, if later," should be construed as meaning "or, if sooner".
"75. … It [ie the offer] was expressly stated to be an 'Offer to Settle under CPR Part 36' that was 'intended to have the consequences set out in Part 36'. Of course, that does not mean that it did in fact comply with Part 36 and therefore must, come what may, somehow be shoehorned into the confines of its four corners: a stated bid to attain a particular goal does not also mean that the goal has been attained. "
"The answer to the critical question still turns on how the reasonable man would read the offer. The relevance, however, of the claimant's expressed intention to make its offer a Part 36 offer is that, if there are any ambiguities in it raising a question as to whether the offer does or does not comply with the requirements of Part 36, the reasonable man will interpret it in a way that is so compliant."
"In deciding questions of costs one has to go back to the principles which govern cases of this kind. One of these principles is that if a person who makes a will or persons who are interested in the residue have been really the cause of the litigation case is made out for costs to come out of the estate. Another principle is that, if the circumstances lead reasonably to an investigation of the matter, then the costs may be left to be borne by those who have incurred them."
"Where the facts show that neither the testator nor the persons interested in the residue have been to blame, but where the opponents of the will have been led reasonably to the bona fide belief that there was good ground for impeaching the will, there will be no order as to costs. Of course the opponents must have taken all proper steps to inform themselves as to the facts of the case, but if, having done so, a bona fide belief in the existence of a state of things which, if it did exist, would justify litigation, then, although no blame should attach to the testator or to the executors and persons interested in the residue, each party must bear his own costs".
In Chaplin v Kostic [2008] 22 Costs LR 271, [12], Henderson J made clear that, by using the word "blame", the judge in Davies v Gregory was not concerned with moral blameworthiness, but simply with what was the cause of the litigation.
(1) the testator was suffering from Alzheimer's disease at the time he made his will, and there was real doubt raised about his capacity;
(2) both of the experts called in relation to the issue of capacity said that the case was one which was very close to the line;
(3) there was little interaction between the testator and the solicitor Ms Thomas, who in any event did not follow the "golden rule" of seeking a medical opinion as to capacity at the time of making the will.
"The probate rule is rooted in the inquisitorial exercise that was conducted by the ecclesiastical courts and the Probate Division where the court had to be satisfied of the validity of the will before it could pronounce for the will and admitted to probate. The effect of mutual wills upon the distribution of the estate under a later will which is admitted to probate is a matter for the Chancery Division applying the law of trusts; it is not a matter of probate law and practice. The nature of that litigation is not inquisitorial: it is adversarial and, not infrequently, very adversarial as the two families disunited by death battle for their perceived true inheritance."
" … this is not a case in which the available material reasonably led the daughters to the genuine belief that the will was invalid, but rather that the daughters genuinely and passionately believed that the 2008 will must be invalid whatever the circumstances reasonably showed and would use whatever material was available in order to sustain that a priori position."
The defendants submitted that the claimant's doubts as to the testator's capacity were not reasonable. They were firm beliefs founded on a false premise. Hence the probate rule did not apply.