Julie Mate v Shirley Claire Mate & Ors

Costs are determined by the overall justice of the case. The unsuccessful party normally pays the successful party’s costs, but the court may make a proportionate order where the claimant succeeds on one basis of claim and fails on another. An issue-based order should be approached cautiously where the issues substantially overlap.

A claimant’s Civil Procedure Rules 1998 Part 36 offer may be validly made to fewer than all defendants where nothing in Part 36 requires service on every defendant. A trial begins when the parties are required to attend court, not on a preceding judicial-reading day. Where the claimant beats a valid Part 36 offer, the court may award proportionate indemnity costs, enhanced interest and the prescribed additional amount, unless it would be unjust to do so.

This was a consequential costs judgment following the dismissal of Julie Mate’s proprietary estoppel claim and the success of her unjust enrichment claim, valued at £652,500, in the Main Judgment, [2023] EWHC 238 (Ch).

The court considered the appropriate proportion of costs, whether Shirley Mate should be jointly liable for them, whether an offer of £650,000 made by Julie to two of the defendants was a valid Part 36 offer, whether it was served in time, and the consequences of the offer under Part 36.

1. Julie was the successful party. An issues-based order was unjust because the proprietary estoppel and unjust enrichment claims involved substantial evidential overlap. A proportionate order was appropriate under CPR 44.2(6)(a): Julie was awarded 75% of her costs, reflecting her failure on the proprietary estoppel basis and the distinct work attributable to it.

2. Shirley was not made a paying party. She had ceased to be legally represented, had admitted the claim, had no beneficial entitlement to the relevant monies, and was effectively defending the claim for Robert and Andrew’s benefit. Costs solely attributable to her defence could be excluded on detailed assessment.

3. Julie’s offer was valid notwithstanding that it was not served on Shirley. Part 36 contained no requirement that a claimant serve an offer on every defendant. Robert and Andrew could have accepted it and pursued any contribution claim against Shirley separately.

4. The offer was served in time. The trial was listed to begin on 6 September 2022, while 5 September was allocated only for judicial reading and the parties were not required to attend. The court therefore did not need to abridge time under CPR 36.17(7)(c).

5. The consequences of CPR 36.17(4) applied, subject to the court’s discretion under CPR 36.17(5). The offer would have avoided the trial, was clear, and was supported by sufficient costs information. It was not unjust to impose the consequences.

6. Julie was awarded 75% of her costs on the indemnity basis from 6 September 2022. The proportionate order remained appropriate under the self-contained Part 36 code. Enhanced interest was awarded at 8% above base rate, rather than the maximum 10%, and the additional amount of £57,625 was ordered.

7. Julie was awarded 75% of the costs of the consequential hearing on the indemnity basis. Robert and Andrew were ordered to pay £268,993.83 on account of costs by 4 pm on 19 April 2023.

First-instance consequential costs judgment following the Main Judgment, [2023] EWHC 238 (Ch).