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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Jones v Tracey & Ors (Re Costs) [2023] EWHC 2256 (Ch) (12 September 2023) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2023/2256.html Cite as: [2023] EWHC 2256 (Ch) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST
Fetter Lane London EC4A 1NL |
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B e f o r e :
____________________
SAMUEL ARTHUR JONES |
Claimant |
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- and - |
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(1) NEAL TRACEY (2) STEPEHN ROBERT BIRT (3) LINDA MARIA CANO (4) THE BRITISH POLIO FELLOWSHIP (5) CHRISTOPHER STROTTEN (6) CRYSTAL LOCKETT |
Defendants |
____________________
____________________
FOLLOWING WRITTEN SUBMISSIONS
Crown Copyright ©
(1) They were not able to explain why the letter dated 7 June 2023 had been marked 'without prejudice'.
(2) There was no reason for the letter to have been marked either 'without prejudice' or 'without prejudice save as to costs' given its contents.
(3) The writer of the letter did not appreciate the difference between the two markings.
(4) If the letter was privileged, it was open to them (in fact their client) to waive the privilege.
(5) The letter was not, despite its marking, in fact, a without prejudice communication because the letter did not contain an offer to settle and was not written in an attempt to settle the claim.
Relevant correspondence
"We confirm that our client is willing to engage with alternative dispute resolution without moving the trial listed for 10th July 2023.
We look forward to hearing from you."
"We confirm we agree to attending an Alternative Dispute Resolution meeting but have not heard from you in regard to the arrangements."
Letter dated 7 June 2023
(1) The starting point for the court is the manner in which the letter is drafted. It will normally be the case that the writer of a letter can be taken to have intended to mark a letter in a particular way or otherwise to have intended to write an open letter. However, if it is clear from the context that a letter was intended to be open, or without prejudice or without prejudice as to costs, it will be treated as such.
(2) In some cases the true nature of the letter will be obvious such as a letter that falls within a chain of communications of a particular type. Commonly a letter which is not marked 'without prejudice' that falls within a chain of communications in the context of settlement negotiations will be treated as being without prejudice unless the opposite intention is obvious. The converse may also be true.
(3) It seems to me that the true nature of the communication must be established objectively without regard to evidence of subjective intention and the right approach is to consider how a reasonably minded recipient would regard the letter.
(4) In this case EA Neary appear to be saying both that they are unable to explain the marking on the letter and that it was an error because the writer did not understand the difference between without prejudice and without prejudice save as to costs. These submissions are inconsistent but both are inadmissible.
(5) The letter of 7 June 2023 is in reply to an open letter which raised the possibility of alternative dispute resolution. The reply refers to EA Neary's open email dated 3 May 2023 and forms part of a chain of communications dealing with the possibility of some form of ADR. All those communications were open and obviously intended to be open. Communications between parties about the possibility of, for example, participating in a mediation do not need to be 'without prejudice' and it will usually be preferable for both parties to be able to rely upon such communications. They are more likely to be open than without prejudice.
(6) The letter does not contain an offer and does not relate to communications about a specific offer. It relates to the use of ADR. It seems to me that it was plainly not a letter that was intended to be 'without prejudice' and this would have been obvious to the reasonably minded recipient. It is right therefore that I have regard to it.
"We refer to your letter dated 27th April 2023 with regard to your client offering to engage with alternative dispute resolution without moving the trial date. We sent an email on 3rd May 2023 that our client was in agreement to attending alternative dispute resolution.
We understand there are several forms resolving issues before a final hearing but would invite you clarify why your client was unwilling to attend mediation given that we agreed not to move the trial date. Further the offer was some two months before the final hearing." [sic]
Costs
(1) CPR 36.14(1) provides that if a Part 36 offer is accepted the claim will be stayed. It is said that prior to the issue of the claim there was no claim to stay and an essential step was an application to the Probate Registry to deal with the application for a grant.
(2) In the period after issue of the claim the third defendant third defendant relies upon paragraph 6 of Practice Direction 57 which deals with the ways in which a probate claim may be disposed of after the parties have agreed to settle the claim. Notably neither Part 57 nor PD 57 state that the parties may not rely upon offers made under Part 36 despite explicit disapplication of other provisions of the CPR such as the provisions of Part 38 (see CPR rule 57.11).
(1) CPR rule 57.11 (1) and (2) make provisions for the disposal of a probate claim leading to a grant of probate. The claim may be discontinued or dismissed. Paragraph 6 of PD57 provide further guidance about how a probate claim may be resolved after the parties have agreed to settle. It is right that a probate claim cannot simply be stayed because it would leave the estate in limbo. There must either be a discontinuance or dismissal of the claim and/or counterclaim or a grant in solemn form or under section 49 of the Administration of Justice Act 1985.
(2) It is right that the provisions of CPR rule 36.14(1) provide that if a Part 36 offer is accepted the claim will be stayed. Under rule 36.14(2) if the offer relates to the whole of the claim the stay will be upon the terms of the offer and under rule (5) the court has power to enforce the terms that have been agreed. It is also right that before proceedings are issued there is no claim to stay. However, it cannot seriously be suggested that the acceptance of a pre-issue Part 36 offer is outside the provisions of Part 36. Although Part 36 primarily functions in money claims it is capable of operating in other claims and it would be wrong to give its terms a narrow reading that limit its effect when the CPR encourages parties to use its provisions to resolve claims. In that sense probate claims are no different to other litigation before the courts. There is however a difference in the steps that must be taken upon terms having been agreed.
(3) The provisions of Part 36 and Part 57 need to be read together. One is providing a mechanism for making offers that have specified interest and costs consequences. The other is seeking to ensure that an estate can be administered. Those aims are not inconsistent.
(4) After issue of the claim, acceptance of a Part 36 offer will have the effect of staying the claim in a limited way. Neither party will be entitled to pursue the claim to a trial. But the court is not deprived of all powers to ensure that there is a proper disposal of the probate claim by a grant being made or the claim being dismissed.
(5) It has not been suggested in any authority drawn to my attention that a probate claim cannot be subject to valid Part 36 offers and there is a good reason for that. In fact, it has been assumed in at least one reported decision that Part 36 applies in a probate claim: see the decision of HHJ Behrens sitting as a High Court judge in Ritchie v Joslin [2011] 1 Costs L.O. 9.
Failure to engage in mediation
(1) The claimant had made offers to settle well before the claim was issued to which there was no substantive response.
(2) It was essential there was a grant in respect of the estate either under an intestacy or under the 2013 will. The claim was not entirely on all fours with a claim for a money sum or damages. The options for settlement were rather more limited than in such a case.
(3) The third defendant's conduct of the claim was very unsatisfactory including (1) filing her acknowledgement of service and defence and counterclaim late, (2) failed to provide a Disclosure Review Document or a certificate of compliance for disclosure, (3) failed to provide signed witness statements until the trial (4) made a very late application to adjourn the trial based upon unsatisfactory medical evidence, (5) made the application for third party disclosure very late (6) applied to serve witness summaries in a manner that was poorly framed and misguided. I have in mind however that the production of the Verisona Law file, albeit very late was of assistance to the claimant despite the application being pressed by the third defendant.
(4) It was the claimant who raised first the question of ADR on 27 April 2023. This was followed by a further offer that would have had significant benefits to the third defendant had it been accepted. Critically the third defendant chose not to engage with the offer and was unspecific about the form of ADR she proposed. The letter of 7 June 2023 adds little because the third defendant decided to refer back to ADR on the day the offer made on 24 May 2023 expired without having responded to the offer. The claimant was entitled to know what view the third defendant took of the offer before committing himself to a form of ADR.
(5) The merits of the claim were weighted heavily in favour of the claimant. The third defendant knew of the basis upon which the claim was made from the claimant's letter before claim and the follow-up letter from Russell Cooke and had a clear idea of the evidence that was relied upon from the first defendant's letter to the Probate Registry dated 30 December 2018. The third defendant had no positive evidence to rely upon of any weight or value. Instead of leaving it to the claimant to prove his claim, she actively opposed it and by doing so took her chances albeit she had no positive case.
Part 36
(1) The terms of the Part 36 offer were realistic and accorded with the merits of the claim. The claim was strong. The third defendant would have been better off had she accepted the offer.
(2) The offer was made well before the claim was issued. As I have pointed out the third defendant had various options open to her. She chose to actively oppose the claim and counterclaim for a grant based upon an intestacy.
(3) The third defendant had sufficient information when the offer was made to decide what course of action to adopt. The third defendant had seen the letter from the first defendant (who did not benefit under thew will_ to the Probate Registry and was aware of the case he made and the claimant's case. Interestingly the third defendant was slow to follow up enquiries and made her application for a third party disclosure order very late on. The Verisona Law file when it was produced strongly supported the claimant's case.
(4) The claimant provided a response to EA Neary's reply to the offer. There is no sense in which the claimant withheld information. He was not an executor under the will and in no better position than the claimant to obtain documents.
(5) The offer was a genuine attempt to settle the claim without proceedings being issued.
(1) the claimant's costs of and incidental to the claim on the standard basis until the expiry of the Relevant Period and on the indemnity basis to the date of the court's order consequent upon this judgment;
(2) interest on those costs at 4% above base rate from the date they were incurred to the date of payment;
(3) an additional sum of 10% of the assessed costs.