Butcher v Wolfe and Wolfe

JurisdictionEngland & Wales
JudgeLORD JUSTICE MUMMERY,LORD JUSTICE MANTELL,LORD JUSTICE SIMON BROWN
Judgment Date30 October 1998
Judgment citation (vLex)[1998] EWCA Civ J1030-15
CourtCourt of Appeal (Civil Division)
Docket NumberCHANF 97/1210/3
Date30 October 1998
Jill Louise Butcher
Plaintiff/Appellant
and
Timothy Edward Wolfe

and

John Robert Wolfe
Defendants/Respondents

[1998] EWCA Civ J1030-15

Before:

Lord Justice Simon Brown

Lord Justice Mummery

Lord Justice Mantell

CHANF 97/1210/3

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE (CHANCERY DIVISION)

(MR JUSTICE RATTEE)

Royal Courts of Justice

Strand

London WC2

MR M WONNACOTT (Instructed by White & Bowker, 19 St Peter Street, Winchester) appeared on behalf of the Appellant

MISS A McALLISTER (Instructed by Blake Lapthorn, New Court, Barnes Willis Road, Segersworth, Fareham) appeared on behalf of the Respondent

1

Friday 30th October 1998

LORD JUSTICE MUMMERY
2

This is an appeal against an order of Rattee J of 26th June 1997 that the plaintiff, Mrs Jill Butcher, pay the defendants' costs of proceedings begun by an originating summons issued on 2nd November 1995 and stayed on terms that were agreed, save as to costs. The appeal raises some points of practical importance on the nature and effect of Calderbank offers and on the judicial determination of disputes on costs in cases where all other issues have been compromised by the parties.

3

In the unusual circumstances of this case, leave to appeal on costs alone was granted by Aldous LJ. The defendants' costs of these proceedings are estimated at £35,000. It is contended by Mr Wonnacott on behalf of Mrs Butcher that the judge's exercise of his discretion on costs was legally flawed. This court is asked to set aside his order, re-exercise the discretion and order Mrs Butcher's costs of the proceedings to be paid by the defendants.

4

BACKGROUND FACTS

5

The background to the dispute is that the defendants are brothers of Mrs Butcher. The three of them held farmland in Hampshire as beneficial tenants in common in equal shares. That farmland was tenanted to a family farming partnership carried on under the name B Wolfe & Sons. The partners were Mrs Butcher and her husband, the defendants, and their parents, Benjamin and Zena Wolfe. The partnership was governed by deed dated 17th November 1980.

6

Mr and Mrs Butcher ceased to be partners on 31st March 1991. The tenancies were and remain assets of the partnership. Between mid-1992 and the autumn of 1995 negotiations took place between solicitors for the parties to settle their differences about the farmland and the dissolution of the farming partnership. Unfortunately the negotiations did not produce a settlement, and two sets of proceedings have started.

7

The originating summons proceedings, commenced on 2nd November 1995, were concerned with the beneficial interests in the farmland. Mrs Butcher sought an order for sale of the land under s 30 of the Law of Property Act 1935, now s 14 of the Trusts of Land and Appointment of Trustees Act 1996. She also sought a direction that the defendants concur in acts to maximise the value of the property, including a direction that they serve a notice to quit determining any periodic tenancy of the land in which they had any interests. Those are the proceedings that came before Rattee J in June 1997.

8

A second set of proceedings was started by writ on 10th January 1997 for the winding up of the partnership. Those proceedings were concerned, among other things, with a dispute about the tenancy of the farmland, of which Mrs Butcher and her brothers were entitled to the freehold reversion. The dispute concerned the dissolution value of the tenancies.

9

That action has not yet been heard. There may even be a preliminary issue to be determined before the action is heard. It is certainly regrettable that these proceedings are so protracted and costly. It may be regrettable that all the proceedings were not heard together, or at least closer together in time.

10

THE CALDBERBANK OFFER

11

The important events for present purposes occurred at the end of September 1995 and in October 1995. At the end of September 1995 Mrs Butcher's solicitors sent to the defendants' solicitors a draft originating summons and a draft affidavit, giving 14 days for a positive response. The immediate response of the defendants' solicitors was to ask for more time to enable them to consider the legal position with counsel. Their reply, after consultation with counsel, took the form of a Calderbank letter, sent and answered before any legal proceedings had started. The letter is dated 31st October 1995. It is headed "Without prejudice save as to costs in future litigation":

"We write in a final effort to resolve the outstanding dispute between our respective clients as to your client's entitlement to demand a sale of the land referred to in the Schedule to this letter with vacant possession, or the purchase by our clients of your client's interest in the said land valued on the same basis.

We have been advised by Counsel that in the circumstances of this case the court is unlikely to order a sale of the land or to require that the partnership gives notice to quit so that a sale can be effected on a vacant possession basis.

If, contrary to our expectations the court should order a sale it would be on the basis of a sale of the reversion subject to the tenancies.

Our clients as the co-owners of the land referred to above are willing to raise and pay to your client a sum representing the present value of her interest in the land subject to the tenancy in favour of B Wolfe & Sons. This, we are advised, is the best outcome your client can expect of any proceedings brought by her for an order for sale of the land under Section 30 of the Law of Property Act 1925. We wish to save the costs of this litigation, and therefore offer to buy out your client's interest in the land on a tenanted basis.

Vacant possession of the cottage occupied by your client would have to be given on payment of the sum representing your client's interest in the land.

As you are aware, we have sought independent advice as the value of this land subject to the agricultural tenancies in favour of the partnership. In order, however, to achieve a speedy resolution of this matter our clients are prepared to agree to pay a more generous figure, namely £200,000 for your client's interest in the land. Please note that the figure of £200,000 has been carefully considered and is not meant to be just the first figure in a bargaining situation and liable to be increased. If anything, any future proposals are likely to be for a lower sum.

If the figure is not acceptable but the basis of valuation is agreed then there ought to be agreed a procedure for determining an independent valuation. We have in mind the appointment of valuers on both sides, with provision for determining any dispute between these valuers by a third valuer acting as an expert.

If our offer is accepted, our clients would expect to be able to raise the amount due to your client within a short space of time, and as stated above, will be paid on Mr & Mrs Butcher vacating the bungalow. For the avoidance of doubt, we confirm that the sum offered contains no element of legal costs incurred by our clients: we propose that this matter be resolved on the basis that each side should bear their own costs.

This offer will remain open for 28 days from today, and is made in full and final settlement of any claims your client may have in respect of the land described in the Schedule. In the event that it is not accepted, we reserve the right to refer to this letter in any future litigation, either in your client's Section 30 application, or any other proceedings concerning the partnership of B Wolfe & Sons or your client's interest in the land let to the partnership, when the question of costs falls to be determined.

We hope that your client will see fit to accept our offer. We look forward to hearing from you in due course, and in any event within 28 days."

12

On 1st November 1995 Mrs Butcher's solicitors wrote rejecting the offer. No reasons were given for the refusal. So far as this Court is aware, no further negotiations took place between the parties until the trial before Rattee J in June 1997 was almost over.

13

THE TRIAL

14

Mrs Butcher's case was that she should have her share in the freehold reversion at vacant possession value and that the farmland should be sold. The defendants' case was that the farmland should not be sold and that Mrs Butcher's beneficial interest should be valued on the basis that the land was subject to an agricultural tenancy or tenancies in favour of the partnership. It was also contended that a sale of the land on the open market would endanger the continuation of the farming business.

15

When the defendants' then counsel was making closing submissions, the judge asked her why he should not make an order for the sale of the land on the tenanted basis. The defendants' counsel asked for time to take instructions whether the defendants would make an offer to buy Mrs Butcher's interest at the current tenanted value of the land. Such an offer was in fact made on behalf of the defendants. The judge said he would treat that offer as remaining open until 10.25 am the next morning. Mrs Butcher accepted that offer before the deadline. The parties settled the action on agreed terms, save as to costs.

16

The terms of the agreement are contained in a document. Clause 6 of the agreement is relevant:

"The vendor and the purchaser shall apply to the court to stay the proceedings save:-

(1) as to such order for costs as the court may think it appropriate to make; and

(2) for the purpose of enforcing the terms of this agreement, for which purpose this agreement shall be treated as a rule of Court."

17

Counsel asked the judge to decide the issue on costs on...

To continue reading

Request your trial
30 cases
  • Norris v Norris
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 28 July 2003
    ...also disapplied in relation to family proceedings by the Family Proceedings (Miscellaneous Amendments) Rules 1999, r 4(1)(b). 8 In Butcher v Wolfe and Another [1999] 2FCR 165, this Court reviewed the working of the Calderbank procedure. Although the decision was given before the introductio......
  • Norris v Norris; Haskins v Haskins
    • United Kingdom
    • Court of Appeal (Civil Division)
    • Invalid date
    ...court was entitled to interfere with their conclusions; GW v RW[2003] 2 FCR 289 considered. Cases referred to in judgmentsButcher v Wolfe[1999] 2 FCR 165, [1999] 1 FLR 334, CA. Cowan v Cowan[2001] EWCA Civ 679, [2001] 2 FCR 331, [2002] Fam 97, [2001] 3 WLR 684, [2001] 2 FLR 192. Cutts v Hea......
  • The Companies Act (2016 Revision) Trina Solar Ltd
    • Cayman Islands
    • Grand Court (Cayman Islands)
    • 8 December 2021
    ...have teeth in order for them to be effective.” The Company also relied on the statement made by Mummery LJ in Butcher v Wolfe and Wolfe [1999] 1 FLR 334 at 340 that, “ The proper approach of a Calderbank offer, when it is taken into account on a later argument on costs, is to ask whether th......
  • Ong & Ong Pte Ltd v Fairview Developments Pte Ltd
    • Singapore
    • High Court (Singapore)
    • 18 March 2014
    ...as a means to initiate settlement and also effectively replaced the Calderbank offer:at [40] , [48] , [49] and [51] .] Butcher v Wolfe [1999] 2 FCR 165 (refd) Calderbank v Calderbank [1976] Fam 93 (refd) Chrulew v Borm-Reid & Co [1992] 1 WLR 176 (refd) Colgate Palmolive Ltd v Markwell Finan......
  • Request a trial to view additional results
1 firm's commentaries

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT