Grierson v Grierson [2024] EWHC 3048 (Ch)- Claimant beat his own Part 36 offer

This blog was co-authored by Ian Johnston and Bethannie Byrne.

The facts of this case concern a dispute between Duncan Grierson, the claimant, and Robert Grierson, the defendant, over the estate of their mother Mrs Grierson (“the Deceased”). The Deceased made two wills: one in 2020 and one in 2022.

Facts

The claimant contested the validity of the 2022 will, asserting that the 2020 will should be pronounced in solemn form including Clause 1 which appointed Mr Grierson and the defendant as executors and trustees and would have had the effect of the defendant being the sole executor and trustee. Should Clause 1 be omitted from Probate, the claimant sought the appointment of a new professional administrator.

Claimant’s Part 36 offer

The claimant made an offer pursuant to Part 36 of the Civil Procedure Rules (“a Part 36 offer”) offer on 12 March 2024. The terms of the offer were:

1. The 2020 Will be admitted to probate as being the Deceased’s last valid will;

2. The 2020 Will shall be deemed varied as follows:

a). the defendant is replaced as executor of the 2020 and replaced by an independent administrator (to be agreed by the parties or appointed by the court in default of agreement).

b). the defendant shall receive an additional pecuniary legacy of £20,000; and

3. The Deceased’s estate will be administered on the basis that the defendant has no proprietary or other equitable interest (including but not limited to a right to reside in the property)

A Part 36 offer also includes a requirement for a defendant to contribute towards the claimant’s costs. The “relevant period” for the defendant to accept the offer without additional costs consequences expired on 2 April 2024 and the defendant failed to accept the offer.

Judgment

The court found that the 2020 will, including Clause 1, was valid and should be admitted to probate. The 2022 will was deemed invalid. Since the trial the defendant had consented to the appointment of an independent administrator.

Additionally, it was found that the defendant should bear the costs of the proceedings incurred by the claimant.

The claimant contended that he had beaten his Part 36 offer made on 12 March 2024. Under CPR 36.17(2), the court must assess whether the judgment obtained was at least as advantageous to the claimant as the terms of the Part 36 offer and, if so, decide whether the

defendant’s contribution towards the claimant’s costs should be increased to reflect a failure to accept the offer.

Joanne Wick KC (sitting as a Deputy Judge of the High Court) referred to the case of Lamport v Jones [2023] EWHC 667 (Ch) where Mellor J gave some guidance as to how claims which are not “money claims” within the meaning of CPR 36.17(2) should be assessed for the purposes of CPR 36.17- for money claims, with the words ‘however small’ CPR 36.17(2) specifying a bright line test to ascertain whether a Part 36 Offer was more advantageous than the judgment obtained. Where the claim in question is a non-money claim, a comparison between the offer and the judgment still has to be undertaken.

The comparison required can reasonably be undertaken by identifying whether the relief obtained in the proceedings was in broad terms more advantageous to the claimant than its offer.

It was decided that the judgment given following the trial was “at least as advantageous” to the claimant as the proposals contained in his Part 36 Offer. The claimant’s offer included an additional pecuniary legacy to the defendant of £20,000. The judge considered that, if the defendant had accepted that offer, the claimant would have been financially worse off than under the terms of the judgment and therefore the judgment obtained was at least as advantageous to the claimant as the terms he had offered the defendant. The defendant should have accepted the offer rather than requiring the matter to be taken to trial and this had led to all parties incurring substantial costs.

Costs

In considering that the claimant had beaten the defendant’s Part 36 offer, the claimant was awarded:

i) costs on the indemnity basis from 2 April 2024;

ii) interest on those costs at the rate of 10% above base rate;

iii) an additional sum, being 10% of the amount awarded to him in respect of costs

The claimant also asked the judge to award him his costs for the period prior to 2 April on the indemnity basis, removing the requirement to consider whether costs incurred were proportionate to the matters in issue, on account of the defendant’s conduct throughout the litigation. The judge considered the matter did justify such an order being made, making specific reference to:

1. The defendant having been in receipt of a letter from the claimant’s solicitor dated 22 June 2022 identifying that the attesting witnesses to the 2022 will were not present at the same time (a requirement for a will to be validly executed) which should have led him to recognise that there was no reasonable prospect of establishing the validity of the 2022 will.
2. The defendant having been well aware of the need for independent advice and an independent assessment of Mrs Grierson’s capacity and having failed to ensure such steps were taken before a will was executed very substantially in his favour.
3. The defendant having conducted proceedings in such a way that it was likely to drive up costs.

The judge concluded an appropriate award for payment on account against the claimant’s costs would be £160,000 plus VAT, approximately 80% of the claimant’s costs.

This case highlights the importance of carefully considering the proposals of a Part 36 Offer in non-money claims and the cost consequences associated should an offer not be accepted.