Charlotte Swift v Malcolm Carpenter

Hearing dates: 23, 24, 25 June 2020

Approved Judgment on Costs and Permission to Appeal

The following is a judgment of the Court:

The respondent has made a number of concessions, namely that CPR36.17(4) should apply; that the appellant is entitled to an uplift on damages of £65,095.65 for beating the part 36 offer; that the appellant is entitled to indemnity costs after the expiry of the part 36 offer, and that interest is recoverable on damages and costs.

The respondent argues that the appeal costs up to and including the adjournment of the appeal on 24 ^th of July 2019 (subject to a point on the date – see below) should not be caught by the part 36 offer and that the appellant should bear the costs to that point. The submission is that the successful basis of appeal had not been formulated up to that point, and that the adjournment was necessary because the appellant wished to reformulate the case. The respondent relies on Cheeseman v Bowaters [1971] 1 WLR 1773. The appellant argues that the adjournment of July 2019 came after a without prejudice offer to accept £800,000 on 6 August 2018, and after a part 36 offer of 1 July 2019, to accept £800,000. As to the reformulation of the case, the appellant argues that the judgment [25] and [221] recognises that the range of expert evidence advanced in the appeal would have been highly likely to be disallowed by Queen's Bench Masters, and could not have been introduced below; further that the issue of the reversionary interest approach was raised only at the July 2019 hearing; and that the court made plain a desire to reach a properly informed conclusion so as to give enduring and workable guidance. The appellant further emphasises the costs risks taken by her and by her lawyers, particularly after July 2019, and stresses her efforts to settle the appeal. The appellant distinguishes Cheeseman v Bowaters on its facts.

In our view, the appellant has been successful in the appeal, has beaten the level of her own without prejudice offer, and the respondent's part 36 offer of 11 October 2018. We accept that the adjournment added to costs and that the reformulation of the case was necessary to provide the relevant evidence so as to reach the conclusions set out in the judgment. Efforts to settle the case after the adjournment are not relevant to the costs before the adjournment. We reject the argument from the appellant that she might have succeeded on appeal at an earlier date on a different basis, which we also consider irrelevant to costs. However, we accept that the appellant has advanced a valid basis for distinguishing this case from the situation in Cheeseman v Bowaters. In the light of the appellant's without prejudice offer, the respondent's without prejudice offer and subsequent part 36 offer, we consider the appellant should have the costs of the appeal, on a standard basis, up to the date when the appellant's part 36 offer of July 2019 takes effect.

There appears to be an argument from the respondent that the costs falling under part 36 arise only from 24 ^th of July 2019, the day after the hearing on 23 ^rd July. This is not fleshed out: see the respondent's skeleton [8]. The appellant counters this by detailed analysis in her skeleton [24]. It is not necessary to recapitulate those submissions.

We conclude that the appellant is correct in her analysis. The indemnity costs should therefore run from 23 July 2019.

The respondent argues that there should be no order in respect of the costs attendant on the appellant's application to call Messrs Cropper and Smith, since the application was only necessary because the appellant's solicitor misunderstood the existing directions. The appellant does not suggest there was no such error, and the error was conceded at the...