Jopling v Leavesley and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Sir David Keene,Lord Justice Elias |
| Judgment Date | 24 July 2013 |
| Neutral Citation | [2013] EWCA Civ 1605 |
| Docket Number | A3/2013/0254 |
| Date | 24 July 2013 |
| Court | Court of Appeal (Civil Division) |
[2013] EWCA Civ 1605
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London
WC2A 2LL
Lord Justice Elias
Lord Justice Lewison
Sir David Keene
A3/2013/0254
Mr H Menon (instructed by Tilly Bailey & Irvine LLP) appeared on behalf of the Appellant
Mr Gilberthorpe (instructed by Freeman Johnson) appeared on behalf of the Respondent
(As approved)
Mr Jopling is the executor of the late Kenneth Smith. On 6 January 2012 he issued proceedings against Mr Smith's stepdaughter, Mrs Leavesley and his niece, Mrs Thompson. In his particulars of claim he alleged that each of them had obtained a cheque for £25,000 drawn on Mr Smith's bank account and that between them they had drawn £14,750 from ATMs with the use of Mr Smith's debit card. He alleged that those monies had been obtained by undue influence, were in excess for any amounts needed to provide for Mr Smith's care and that the estate was entitled to recover them.
On 22 May 2012 Mr Jopling's solicitors made what was described as a Part 36 offer to each of the two defendants. Each offer was in identical terms and said as follows:
"Take notice that the claimant offers to settle the claim against you. The offer is intended to have the consequences of section 1 of part 36 of the Civil Procedure Rules. The offer will remain open for 22 days after service of this notice on you and if you accept this offer within that time you will be liable for the claimant's costs in accordance with rule 36.10 of the Civil Procedure Rules. The claimant offers to settle the whole of his claim against you for £25,000 plus interest of £1,935 making a total of £26,935 together with his legal costs to be assessed if not agreed. This offer is intended to settle the whole of the claimant's claim against you only."
After some correspondence, by an email dated 28 December 2012 the defendants' solicitors said that both defendants:
"Each accept the part 36 offers dated 22/ 5/2012 made by the claimant to each of the defendants."
The date of acceptance was outside of the time for acceptance specified in the offer itself which forms what CPR Part 36 calls "the relevant period". Despite the fact that the offer that the defendants had accepted included the term that they would pay the claimant's costs, the incidence of costs was apparently not agreed. It fell to His Honour Judge Behrens to decide what order to make.
No one argued that the offer was not a valid Part 36 offer, despite the fact that it contained its own terms about the costs. The rule under which the judge was required to make his decision was CPR part 36.10. That rule provides as far as material as follows:
"1. Subject to paragraph (2) and paragraph (4) (a) where a Part 36 offer is accepted within the relevant period the claimant will be entitled to the costs of the proceedings up to the date on which notice of acceptance was served on the offeror.
2 is irrelevant.
3. Costs under paragraphs (1) and (2) of this rule will be assessed on the standard basis if the amount of costs is not agreed…
4. Where (a), a Part 36 offer that was made less than 21 days before the start of trial is accepted or (b) a Part 36 offer is accepted after expiry of the relevant period, if the parties do not agree the liability for costs the court will make an order as to costs.
5. Where paragraph (4)(b) applies, unless the court orders otherwise (a) the claimant will be entitled to the costs of the proceedings up to the date on which the relevant period expired and (b) the offeree will be liable for the offeror's costs for the period from the date of expiry of the relevant period to the date of acceptance."
This case is one which falls within Part 36.10(4)(b). It is clear from Part...
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