Howell & ors –v- Marcus Lees-Millais, Lorna Milne Joicey, Fiona Astrid Lees-Millais & ors [2011] EWCA Civ 768

Posted on Wednesday, July 6th, 2011

C were trustees of two trusts and brought an application for the Court’s sanction for various proposed claims against the beneficiaries. On 10th July 2008, following an 8 day hearing, sanction was refused for all but a negligence claim against solicitors. The costs of the application were disputed and directions were given for a costs hearing which was listed for 10 days in May 2010. On 9th April 2009, C offered £211,215.30 to Marcus, £354,417.88 to Lorna and nothing to Fiona. The offers purported to be made under CPR Part 36. Negotiations continued and on 21st April 2010 the previous offers were repeated with the proviso that if they were accepted they would pay Fiona £100,000 in respect of her costs. The latter figure was subsequently agreed at £175,000. D contended that they were entitled to their costs from 21 days after they made the first Part 36 offer in April 2009. The judge held that they were not because the offer was not a valid Part 36 offer. Even if that were wrong, it was not unreasonable for D to wait a year to accept the offer, the offer which was accepted was better in any event and D’s change of lawyers would make assessment difficult. D appealed. The Court of Appeal found that the offer was not a Part 36 offer but in the absence of good reason the offer should be given substantially the same effect as a Part 36 offer. However, the offer which was actually accepted was better than the original offer and therefore D would not be awarded their costs. Permission to appeal granted. Appeal dismissed.

http://www.bailii.org/ew/cases/EWCA/Civ/2011/786.html

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