Kevin Cooper & Ors v Ludgate House Limited

For costs purposes, the successful party is identified by the real-life outcome of the litigation, rather than by technical success on an individual issue. A claimant who establishes liability and obtains substantial damages may be the successful party despite failing to obtain an injunction, although the costs order should reflect that failure.

A Part 36 offer may relate to the whole of a pleaded claim while also containing terms concerning additional rights or future claims. The terms need not correlate exactly with the relief claimed. The offeror must nevertheless prove that the judgment was no more advantageous, and the court may disapply the usual consequences where the offer could not reasonably be evaluated within the relevant period.

The judgment concerned consequential costs following an earlier decision in favour of the claimants: [2025] EWHC 1724 (Ch). The claimants had established rights to light and their infringement by the defendant’s development, but had failed to obtain mandatory injunctive relief. They were instead awarded negotiating damages.

The issues were whether the claimants or the defendant was the successful party under CPR rule 44.2, and what effect should be given to the defendant’s November 2024 offers of £500,000. Those offers required both settlement of the claims and release of rights of light and future statutory compensation claims under section 204 of the Housing and Planning Act 2016.

1. Costs and successful party. The claimants were the successful parties, although not wholly successful. The assessment under CPR rule 44.2 concerns the outcome of the litigation in real-life terms, not success on a particular issue: Kastor Navigation Co Ltd v AXA Global Risk (UK) Ltd [2004] EWCA Civ 277. The questions identified in Roache v News Group Newspapers Ltd [1998] EMLR 161 remained pertinent. The claimants obtained substantial damages which they could not have obtained without proving liability and infringement.
2. The failure to obtain an injunction was an important issue, particularly because of the potential cost of cutting back the development. The claimants should therefore recover only a proportion of their costs. The Powells were awarded two-thirds of their costs. Mr Cooper was awarded one-third, because by the time of his counter-offer he was seeking substantially more than the defendant’s reasonable settlement offer and failed to obtain it.
3. Part 36 validity. A Part 36 offer must comply with the mandatory requirements of CPR rule 36.5, including stating whether it relates to the whole claim, part of it, or an issue. The words “relates to the whole of the claim” do not mean that the offer may contain nothing beyond the pleaded claim. The offer may include additional terms and need not correlate exactly with the relief claimed. The court followed the approach in Hertel v Saunders [2018] 1 WLR 5852, Calonne Construction Ltd v Dawnus Southern Ltd [2019] 1 WLR 4793 and Grant v FR Acquisitions Corporation (Europe) Ltd [2022] EWHC 3366 (Ch).
4. The November 2024 offer to Mr Cooper was therefore a valid Part 36 offer. However, under CPR rule 36.17 the defendant bore the burden of proving that Mr Cooper had failed to obtain a more advantageous judgment. The value of the rights of light and future statutory compensation had not been determined and could not safely be estimated. That burden was not discharged, so the automatic consequences of rule 36.17(3) did not apply.
5. The court also noted that unusual terms may justify disapplying the standard consequences if the offeree could not reasonably evaluate the offer within 21 days. CPR rule 36.17(5) requires consideration of the offer’s terms, available information, any refusal to provide information, and whether the offer was a genuine attempt to settle.

First-instance consequential costs judgment following the court’s earlier merits judgment in [2025] EWHC 1724 (Ch).