Matthew Peter George Biddick v Peter Biddick

This judgment was handed down remotely at 10:30 am on 27 October 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archive.

Introduction

This is my judgment on costs, following a hearing before me on 9 May 2025, at which I disposed of an application by the defendants by notice dated 24 April 2025. Following that hearing, I invited written submissions on costs, which I received sequentially, concluding as long ago as 4 July 2025. Unfortunately, I was then very busy and overlooked the necessity to deal with this matter. I am sorry for this oversight.

The claimant and the third defendant are brothers, sons of the first and second defendants (who also have two daughters). The claimant's claim was essentially one in proprietary estoppel in relation to agricultural land owned by the first and second defendants. There were also partnership issues. On 11 July 2023 the defendants made a CPR Part 36 offer to settle the litigation. On 25 June 2024, the claimant accepted that offer by way of a notice of acceptance. The consequence was that the proceedings were automatically stayed upon the terms contained in the offer. I made an order on 17 July 2024 on the cost position for the whole of the proceedings to that point.

The CPR Part 36 offer letter said in part:

“To settle this matter and subject to the consent of our clients' bankers Barclays and Clydesdale being forthcoming, which will be needed before real property can be transferred to your client, our clients will on that basis transfer to your clients:

1. Parts of HMLR title No. CL164872 comprising:

(a) Treravel Farmhouse.

(b) Treravel Farmland comprising approximately 94 acres of farmland to include the access lane to the old farmyard (as outlined pink on the attached plan).

2. Parts of HMLR title No. CL238104 Land at Churchtown, St Ervan, Wadebridge comprising approximately 32 acres of farmland.

The areas to be transferred are outlined in pink on the attached plan.

3. The elements of this offer at paragraphs 1 and 2 above are on the basis that your client pays to our clients the sum of £500,000 on the date of completion of the transfers of those parcels of land as at 1 and 2 above (‘the Completion Date’).

4. Your client will:

a. resign from the partnership known as P & M R Biddick (‘the Partnership’) and relinquish his outstanding profit share, current account and any interest in the Partnership to our clients at nil cost;

b. and transfer his shares in the company Biddick Contractors Limited (‘the Company’) to our clients at nil cost and resign as a director and employee of the Company.

5. Our clients will transfer the following assets of the Partnership to your client on the Completion Date:

Land Rover Defender

Ifor Williams livestock trailer

Honda quad bike and accessories/attachments

All cattle and sheep feeders and handling equipment

Rolland dung spreader

Fendt 718 tractor

2 x CLAAS mowers

Krone twin rotor rake

CLAAS tedder

6. Your client will allow our clients to structure the transaction so as to allow them to benefit from holdover tax relief to the maximum amount legally possible in respect of the land transferred to your client as part of this settlement. The parties will agree that on the advice of the partnership's accountants the value of the farmhouse will be determined as far as the law allows so as to reduce the incidence of CGT.

7. Our clients will be granted at all items and for all purpose a right of access into the old farmyard (as dashed blue) on the plan attached.

8. Your client would be granted the right of way onto the Airfield to enable access to the existing gateway which lies some 10m from the public highway. This is marked with an orange arrow on the attached plan.

9. The settlement sum includes interest.

This offer relates to the whole of your client's claim and in connection with his interest in the Partnership and the Company. There is no counterclaim so no counterclaim has been taken account of in formulating this offer.

The settlement sum does not include costs and as mentioned above, our clients will pay your client's costs on the standard basis, to be assessed if not agreed, up to the date of notice of acceptance, if this Offer is accepted within the relevant period.”

One consequence of the agreement achieved by the acceptance of a Part 36 offer is set out in CPR rule 36.14(8), as follows:

“(8) Where—

(a) a Part 36 offer (or part of a Part 36 offer) which is not an offer to which paragraph (6) applies is accepted; and

(b) a party alleges that the other party has not honoured the terms of the offer,

that party may apply to enforce the terms of the offer without the need for a new claim.”

(Rule 36.14(6), referred to in paragraph (8)(a), deals with offers to settle by paying a single sum of money, and does not apply here.)

Despite the acceptance of the Part 36 offer, however, the parties were unable to agree on the documents necessary to give effect to the settlement terms. Matters went back and forth between them. Ultimately, the present application was issued by the defendants, on 24 April 2025, for an order requiring the claimant to execute certain documents set out in the application and draft order. By the time this application came on for hearing on 9 May 2025, the parties were mostly but not entirely agreed. My order on that date dealt with the remaining points, and the matter was adjourned with liberty to apply, and directions for the written submissions on the costs of the application. As stated above, I have received and now considered those, and this is my judgment on costs.

Costs generally

I have said this before in other cases, but I will repeat that the rules on costs are well known. Under the general law, costs are in the discretion of the court: Senior Courts Act 1981, section 51(1); CPR rule 44.2(1). If the court decides to make an order about costs, the general rule is that the unsuccessful party in the proceedings pays the costs of the successful party: CPR rule 44.2(2)(a). However, the court may make a different order: CPR rule 44.2(2)(b). In deciding whether to make an order, and if so what, the court will have regard to all the circumstances, including “the conduct of all the parties” and any admissible offer to settle the case (not falling under CPR Part 36) which is drawn to the court's attention: CPR rule 44.2(4).

It is important to be clear about the meaning of “successful party” in the context of the costs rules. In Invenia Technical Computing Corporation v Hudson [2024] EWHC 1302 (Ch), ICC Judge Barber said:

“7. To be considered the ‘successful’ party on an application, it is necessary only to succeed on the application overall; it is not necessary to succeed on each individual issue: Kastor Navigation Co Ltd & others v AXA Global Risks (UK) Ltd & Ors [2004] EWCA Civ 277 at [143]. As explained by Sir Thomas Bingham MR in William Roache v News Group Newspapers Limited [1998] EMLR 161 (CA), in determining who is the successful party,

‘The judge must look closely at the facts of the particular case before him and ask: who as a matter of substance and reality has won? Has the plaintiff won anything of value which he could not have won without fighting the action through to a finish? Has the defendant substantially denied the plaintiff the prize which the plaintiff fought the action to win?’”

As there has been no trial in this matter, there are no findings of fact to guide me in relation to the questions arising about costs. On the other hand, what I am concerned with here is not the costs of the whole litigation, but simply the costs of the application brought by the defendants in order to obtain an order that the claimant execute certain documents to give effect to the settlement terms. Nevertheless, it is clear from the written submissions, and the evidence which has been filed on both sides, that there are significant disputes of fact about what happened after I made the order of 17 July 2024. This puts the court in some difficulty, because without a trial of those questions of fact, I am reliant on such admissions as are made and such inferences as I may properly draw from the undisputed facts.

In Andrew Hicks Engineering Ltd v Jenks Associates Ltd [2023] EWHC 2031 (Ch), I reviewed the case law on exercising the jurisdiction to award costs in cases where there had been a settlement of litigation without a trial, and summarised the principles (at [78]) as follows:

“(1) Costs are in the discretion of the court, which must be exercised judicially.

(2) The court must have a proper basis to be able to make a costs order at all; otherwise, the proper order is no order.

(3) That proper basis is facts which have been (i) found on the evidence, (ii) admitted or averred by a party, or (iii) properly inferred from (a) such found or admitted facts, or (b) – in some cases, at least – from the terms of the settlement agreement (if this is available to the court), though the mere fact that under the settlement the defendant pays money to the claimant is not enough.

(4) Where there is sufficient material on which the court can ascertain which is the successful party and which the unsuccessful, the general rule applies, and the...