Paul Jeffrey Woodgate v Robert John Woodgate

Part 36 is a self-contained and prescriptive regime. An offer qualifies only if it relates to the whole or part of a pleaded claim, or to an issue arising in that claim. An offer concerning a transaction or outcome outside the pleaded proceedings is not a Part 36 offer, even if it is a valid settlement offer.

Where the court has already ruled on costs, a party should not ordinarily reserve a future right to seek additional Part 36 relief based on later events. In deciding whether further relief would be unjust, the court must consider the information available and circumstances prevailing when the offer was made. The court may refuse permission where the offer has not been beaten and any future prospect of doing so is remote.

The claimant and defendant were brothers involved in proceedings concerning the administration of their parents’ estates. The claimant had sought, among other relief, an account and occupation rent relating to property in the estate. Following determination of the outstanding accounting issues, the court ruled that the defendant should pay the claimant’s costs.

The claimant sought permission to apply later for additional costs relief under Part 36, after the value of his beneficial interest had been formally established. The issue was whether that permission should be granted, having regard to the validity and timing of the alleged Part 36 offer and the prospects of the claimant beating it.

1. Permission refused. The claimant was not permitted to return to court for additional costs relief under Part 36.
2. Part 36 is a self-contained and highly prescriptive code. The court should therefore be cautious about construing its rules liberally merely to achieve a pragmatic result. An offer must relate to the whole claim, part of a claim, or an issue arising in the proceedings. The references to “claim”, “part of a claim” and “issue” concern pleaded matters, not matters merely intimated but never pleaded. The alleged offer, construed as an offer to purchase the claimant’s 50% interest in the estates, did not relate to any pleaded claim and was not a Part 36 offer.
3. The authorities concerning postponement of a Part 36 decision did not assist. It may be appropriate to defer a decision where further information is needed, as in Crooks v Hendricks Lovell Ltd [2016] 1 Costs LO 103. Here, however, the court had already been asked to decide costs and had ruled in the claimant’s favour. It was not appropriate simultaneously to determine costs and leave the issue open indefinitely.
4. The claimant had not beaten the offer, and the available evidence made any future prospect of doing so remote. Under CPR r. 36.17(5)(c), the court must consider the information available and circumstances prevailing when the offer was made in deciding whether further relief would be unjust. On that material, further relief would not be justified.
5. The court should ordinarily determine costs without delay at the conclusion of litigation. The concern that the defendant might delay administration did not justify keeping the costs issue open.