Matthew Peter George Biddick v Peter Biddick & Ors

Acceptance of a Civil Procedure Rules 1998 Part 36 offer creates an enforceable settlement. A party cannot accept the offer and later make performance conditional on additional terms which were not included in it.

For an application under rule 36.14(8), the applicant need only allege that the other party has not honoured the offer. The result depends on the facts admitted, found or properly inferred. In costs applications following settlement, the court must identify the party who won in substance and reality, using a proper evidential basis. Success on the application overall is sufficient; success on every issue is unnecessary.

The claimant accepted the defendants’ Part 36 offer concerning transfers of agricultural land and partnership and company arrangements. The proceedings were stayed, but the parties later disagreed about documents required to implement the settlement.

The defendants applied under rule 36.14(8) for an order requiring execution of documents. The court made an order resolving the remaining points and adjourned costs submissions. The issues were whether the application was premature, whether the claimant had honoured the settlement, whether relief under section 39 of the Senior Courts Act 1981 was available, and which party had succeeded on the application.

1. Outcome. The defendants were the successful party overall. The claimant was ordered to pay their costs of the application on the standard basis, summarily assessed at £30,750, together with other disbursements of £539, payable within 14 days.
2. An applicant under Civil Procedure Rules 1998 rule 36.14(8) need only allege that the respondent has not honoured the terms of the accepted offer. It is not necessary at the threshold stage to prove that breach. The order made on the application depends on facts admitted, found on the evidence, or properly inferred.
3. The application was not premature. Acceptance of the Part 36 offer created an enforceable agreement. The purpose of Part 36 is to settle existing litigation, not to generate satellite litigation about additional terms. The claimant had accepted the offer and could not subsequently impose further conditions concerning adverse possession, accessway maintenance, financing, possession proceedings or company indemnities.
4. In deciding costs after settlement, the court must exercise its discretion judicially and have a proper evidential basis. Where the successful party can be identified, the general rule applies unless there is good reason to depart from it. A party succeeds on an application if it wins overall in substance and reality; it need not succeed on every individual issue.
5. The court did not need to decide whether the words “neglects or refuses to comply” in section 39(1) of the Senior Courts Act 1981 are jurisdictional, or whether the claimant’s conduct justified an anticipatory order under that provision. That issue was unnecessary to the costs outcome because the section 39 relief was only a minor part of the application.
6. Given that the application lasted less than one day, summary assessment was appropriate under CPR Practice Direction 44 paragraph 9(2)(b). The defendants’ solicitors’ profit costs were reduced to reflect guideline hourly rates and a minor excess in work on written costs submissions.