Matthew Peter George Biddick v Peter Biddick & Ors

Introduction

1. 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.

2. 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.

3. 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.”

4. 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.)

5. 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

6. 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).

7. 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 at [143]. As explained by Sir Thomas Bingham MR in [2004] EWCA Civ 277 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?'”

8. 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.

9. 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 unsuccessful pays the costs of the successful unless there is good reason to decide otherwise. (5) Where the matter settles after an interim injunction application has been dealt with simply on the ‘balance of convenience test’, whether by imposing an injunction or accepting undertakings, there will not normally be a proper basis for making a costs order at all, let alone ascertaining the successful and unsuccessful parties, and the proper order is no order. (6) For this purpose, there is no distinction drawn between the case of an interim injunction obtained without notice, and one obtained (or undertakings given) after a hearing on notice. (7) A costs order made at first instance will not be overturned by an appellate court unless it is ‘manifestly unjust’.” This case

10. In the present case, each side claims to have been successful on the application, and accordingly seeks a costs order against the other. The defendants say that the claimant was dragging his feet and failing to implement the settlement terms, and that the application was necessary in order to make him do so. The claimant says that the defendants have not demonstrated (i) that the claimant was failing to honour the terms of the offer, (ii) that the documents annexed to the application notice represent those terms, or (iii) that they were ready to be signed. Accordingly, the application was not within CPR rule 36.14(8), and could not succeed. The claimant also says that the application was premature.

11. I may say at once that I do not think it is necessary, in order for an applicant to be able to make the application for an order under CPR rule 36.14(8) at all, to demonstrate that the respondent was in fact failing to honour the terms of the offer. The terms of the rule make clear that it is only necessary for the applicant to allege that the respondent is failing to honour the terms of the offer. What the court finds, and what order the court makes, if any, on that application must then depend on what facts are admitted or found. Evidence

12. The application is supported by witness statements from the third defendant, John Biddick, dated 24 April 2025, and his sister Verity Biddick, dated 15 April 2025. It is opposed by the second witness statement of the claimant, Matthew Biddick, dated 2 May 2025. This being a written procedure, none of these witnesses was cross-examined, although of course each of the witness statements contains a statement of truth. The consequence is that, although I am not obliged to accept all the evidence presented (because the witnesses may for example be mistaken), and I can weigh it up, for present purposes I am not at liberty to disbelieve the evidence contained in the affidavits, unless I consider that it was manifestly incredible in light of all the circumstances: see Long v Farrer & Co [2004] BPIR 1218, [57], which the Court of Appeal applied in Coyne v DRC Distribution Limited [2008] EWCA Civ 488 , [58]. Facts found

13. Fortunately, much of the evidence given in the witness statements is underpinned by correspondence passing between the two sides’ solicitors, and I think I can therefore place reliance on that correspondence to establish the sequence of events. I have read all of it, and what follows is an attempt to summarise the points which have most impressed me. What the correspondence demonstrates is that relatively little progress had been made by March 2025 towards the implementation of the settlement arrived at by the acceptance of the Part 36 offer in June 2024. Part of this delay can be explained by the fact that the claimant did not have immediately to hand the £500,000 needed to pay the defendants, and was seeking funding from third parties. Another part of it can be explained by the need to involve other third parties in the settlement. Thus, for example, it took until about mid-September to obtain consent from the two banks (Barclays and the Clydesdale) with charges on the land concerned.

14. At about the same time (mid-September) the defendants’ solicitors provided the claimant’s solicitors with draft conveyancing documents. The claimant complains about this. The defendants’ solicitors were clearly reluctant to incur further legal costs before the claimant showed whether he could raise the £500,000. But there was no reason why those documents had to come from the defendants. The claimant’s solicitors could themselves have drafted them much earlier if they had wished to do so. Indeed, since the claimant was the intended transferee of the land concerned, that would have been the normal course in an ordinary conveyancing transaction. In the last week of October, the claimant’s solicitors supplied draft corporate documents and a draft settlement agreement to the defendants’ solicitors. In mid-November (about two months after receipt) the claimant’s solicitors raised a number of points on the draft conveyancing documents. Some of these were resolved in correspondence between the conveyancers by January 2025.

15. As a general point the correspondence between the parties is markedly different in tone. That from the defendants’ solicitors is generally proactive, conciliatory and “can-do” in tone. That from the claimant’s solicitors is generally reactive, hostile and negative in tone. It conveys a strong sense of entitlement, of foot-dragging, and of self-excuse by blaming the defendants. (I expressly except from this comment the correspondence between the conveyancers, which, although sometimes slow or delayed, is almost always sensible, practical and polite. I pay tribute to their ability to remain happily distanced from their litigation colleagues. I commend their approach to others seeking professionally to resolve emotionally charged conveyancing situations.)

16. The correspondence indicates that the defendants made a number of concessions to the claimant in order to secure his agreement on the documents. However, it also shows that the claimant made further demands at a late stage for changes to be made to the settlement documents. These included the claimant’s request for assistance with an adverse possession claim against a third party. These changes were no part of the original settlement terms. In March 2025, the defendants indicated in correspondence that they had instructions to return to court for an order to enforce the settlement terms. Matters were then batted back and forth between the two sides.

17. One matter that was raised late in the correspondence was the question of payment for upkeep of certain accessways, the land over which the accessways passed the claimant wished to own, but in respect of which he intimated he would not contribute to upkeep. This caused a considerable discussion to arise. On 31 March 2025, the defendants’ solicitors wrote (in part): “Thank you for your letter of 25 March 2025. Your letter notes that the only significant outstanding matter is completing the transfer. That matter remained with your client until late on Friday 28 March, at which point comments were returned. We note, with some concern, that the position taken by your client appears to include that:

1. In respect of the yellow and purple accessways (in which our clients have already compromised and conceded to your client’s request), he is now stating he wishes to own and use the accessway but pay no maintenance at all to it; and

2. In respect of the orange accessway (which we had assumed was agreed after our clients compromised and accepted your client’s plan), he has now stated that he no longer agrees with his own plan and wants it amended, without specifying in what manner. These responses are as unreasonable as they are unhelpful and appear to support our clients’ conclusion that your client does not intend to settle this matter and is now seeking to frustrate the process.”

18. The claimant’s solicitors replied on 1 April 2025 in a lengthy letter, going through the correspondence to date. That letter included the following: “Our client’s position has not changed. At no point did our client offer, nor was it suggested by either party that he would contribute the maintenance of the Accessway. Our client does not wish to alter the position after an agreement has been reached and reduced to wording in the transfer document.”

19. It also made clear that the claimant was unwilling to execute any deeds of covenant which required third party involvement until the third parties concerned had themselves executed the deeds. I am afraid that there is more than a mere whiff of amour propre here.

20. Thirdly that letter referred to a further issue of banking consents: “In relation to banking consents , whilst the banks have agreed to release the property(ies) from the existing charges, and indemnities exist in the settlement agreement, this is distinct from the requirement of our client’s lender to receive written evidence from both Barclays and Clydesdale that they do not regard our client being liable for any partnership debt from Completion onwards. The evidence they require is beyond our control, but necessary to allow this transaction to progress. Our client’s lender will not release funds without such evidence. If not already requested (please confirm if not, why not) please can you ensure that this has been done to avoid any further delays. If your clients have an issue with providing this evidence, please explain why.”

21. In a letter in reply dated 2 April 2025, the defendants’ solicitors wrote in part: “We understand your letter to state that your client considers it an agreed position that he make no contribution to the maintenance of the purple and yellow accessways, even were he a user. That is disputed by our clients for the reasons given above, with their position being that it was a default user clause agreed in respect of both accessways. That is certainly what we and they understood from previous correspondence. In respect of the yellow accessway, that was to be only after there had been a relevant disposal or development, but the drafting has gone beyond that. Given the matter is, as you say, relatively minor, our clients would invite yours to confirm agreement to the default user clause that was understood to be agreed given it is an inherently fair solution, rather than favouring one party or another. As an alternative, our clients would be willing to take on responsibility for maintenance if the transfers were amended such that they retain the accessways in question.”

22. As to the third party deeds issue, the defendants’ solicitors wrote: “As had been discussed between the conveyancers we had been awaiting comments so that a final version could be put before the third-parties, rather than having to make repeat approaches. We had thought this point was not controversial but our clients have no objection to making the approaches now.”

23. As to banking consents the defendants’ solicitors wrote: “We must express some considerable concern that this has arisen, as a supposedly definitive requirement, at this late stage. This is despite our clients’ previous requests for information in relation to your client’s lender where it has been repeatedly assured that all was in place and the lending available. You are now suggesting those previous representations were wrong. We would be grateful, also, if you could confirm that your client’s lender is aware of the indemnities offered in respect of the Partnership debt in the settlement agreement and that they require the confirmations despite that?”

24. A further point was made more generally: “We note, with some frustration, that your previous letter stated the only outstanding matter of any significance was the transfer. It now appears that there were a number of other significant points that your client considered to be outstanding, as well as unexpected areas of disagreement.”

25. On 7 April 2025, the claimant’s solicitors responded to the letter of 2 April 2025. This maintained the claimant’s position in relation to the purple and yellow accessways. They said: “It seems to us that you have missed the correct meaning of the agreed contributions but nevertheless agreed to them. We do not see that you can now resile from that.” They then set out two pages of detailed quotations from earlier correspondence in support of their client’s position. In relation to other issues, including deeds of covenant and banking consents, they say simply: “Dealt with by conveyancing partners.”

26. There was further correspondence between the parties’ solicitors. Finally, on 17 April 2025, the defendants’ solicitors wrote to the claimant’s solicitors, in part as follows: “Thank you for your letters of 7 and 10 April 2025, the contents of which we note. Your client accepted our client’s part 36 offer by notice of acceptance dated 25 June 2024 (the ‘Settlement’). Since then our respective firms have corresponded at length over the suite of documents needed to give effect to the Settlement, and also to tie-up other matters. Purple and Yellow Accessways We have properly set out our client’s concerns regarding the Purple and Yellow Accessways. You have failed to engage with these and have simply reiterated your client’s position, and have quoted extensively from your earlier letters, which we have already read and considered. Our clients are dismayed at the stance taken. However, they wish to bring this matter to as speedy a conclusion as possible and will make a further concession and accept the demand from your client that there be a specific exclusion from the user clause despite him being one of the users. This brings the transfer into agreed form. We ask that on behalf of your client you confirm his acceptance of the TP1 in the form attached to this document. Documents for Completion Our clients are concerned to note that even at this very advanced stage your client raises new issues and requires further concessions which do not form part of the Settlement. This letter is written with a view to concluding what appear to be the remaining outstanding issues and ascertaining whether your client will not proceed to execute the necessary documents. If your client is unwilling to conclude this matter now, please confirm that by return so that our clients may make an application back to Court for directions. Sic . Query whether “now” was intended. [ … ] Our clients are of the view that there must now be immediate engagement on agreeing the final documents to give effect to completion. By 10 am on Wednesday, 23 April 2025 (the ‘Deadline’), please confirm that your client irrevocably agrees to the form and content of the documents enclosed to this letter, and marked as items 1 to 6 above. Our understanding is that the majority of these documents have either previously been agreed or are substantially close to agreement. [ … ] Please note that if you do not provide such confirmation by the Deadline, we are instructed to apply to the Court to seek an order compelling your client to execute the documents in the form enclosed and listed as 1-6 above, or in the alternative for a Judge to execute the documents on his behalf. For the avoidance of doubt, the papers for this application are in the final form so we expect to issue very shortly after the Deadline if the confirmation requested is not received. [ … ]”

27. There was a short email exchange in which the claimant’s solicitors sought to extend the “Deadline” to Friday 25 April, and the defendants’ solicitors agreed to extend it to 10 am on Thursday 24 April. The claimant’s solicitors responded substantively to the letter of 17 April by letter dated 24 April 2025, which was the date on which the defendants issued their application. This letter said in part as follows: “We write in reply to your letter dated 17 April 2025 and subsequent email communications agreeing to a further extension. We and our client are trying to get this matter to completion as soon as practicable. Giving arbitrary and very short deadlines does not assist. [ … ] Our client’s agreement to the longform settlement agreement is conditional on the below: (i) Possession proceedings The settlement agreement will need to deal with disposing of the possession proceedings. We have therefore made tracked changes to deal with this issue. It would be impractical and nonsensical to refuse this inclusion due to the unnecessary time and costs which would subsequently follow for both parties should it not be agreed. (ii) Indemnity by the Company We understand that two items of equipment to be transferred to our client are in fact owned by the Company as opposed to the Partnership … The equipment will we assume therefore be subject to the Barclays debenture. In order that our client can take good title of these assets, the Company is required to remain as a party to the agreement. [ … ] We repeat that any application to the court at this time is entirely unnecessary and will only increase costs. If an application is made we will of course be showing the court the sum of our correspondence.”

28. The reference in this letter to “possession proceedings” is a reference to separate legal proceedings taken by the defendants against the claimant in respect of his continued occupation of a residential property belonging to the defendants, after the service of a notice to quit. This formed no part of the settlement terms, and the inclusion of the disposal of those possession proceedings in the settlement agreement is a (very late) further demand by the claimant.

29. On the same day, 24 April 2025, the defendants’ solicitors replied (in part): “Thank you for your letter of 24 April 2025. Our letter of 17 April 2025 requested an irrevocable confirmation that the documents numbered 1-6 were in agreed form. The fundamental reason for this, as has been noted multiple times, was that our clients are not willing to allow the ongoing situation, namely one without certainty of a resolution, to continue indefinitely. Your letter comments on just two of the six classes of documents, and whilst we accept those comments are predominantly sensible your response gives our clients no comfort on there being a prompt resolution. It leaves the matter entirely open for your client to raise further issues and seek to indefinitely delay completion. This is a situation our clients find particularly concerning given that their previous requests for confirmation of outstanding issues and engagement on a proposed consent order went unanswered, and when your firm has failed to comment on the remaining four classes of documents set out in our letter of 17 April without providing any indication when that reversion might be provided. We have therefore filed the enclosed application notice, draft order, and supporting evidence (the ‘Application’) with the Court and enclose the same by way of service. We shall revert with service of the sealed application notice when received from the Court. To be clear, our clients will intend to work towards an amicable resolution which we hope can be reached before any hearing is listed by the Court. It remains our clients’ preference that such a resolution be on a full and final settlement and full release basis, including in respect of the possession proceedings and enclosed Application.”

30. I should record that the draft order attached to the defendants’ application is not identical to that which ultimately I made at the hearing on 9 May 2025. By the time of the hearing the defendants had redrafted the order that they sought. But the substance was much the same, and most of the detailed wording remained exactly the same. The main change was that, instead of an obligation on both parties to execute the documents, the defendants sought an order that the claimant sign and release documents to the defendants, who should execute them once third-party consents were received. The order as actually made by me was differently worded again in some respects, but it involved a recital of the claimant’s willingness to execute documents to give effect to the settlement terms, although subject to taking certain legal advice. The substantive effect, however, was very largely the same. Discussion General

31. Having reviewed the entire correspondence between the parties since the acceptance of the Part 36 offer (of which the extracts given above are just a part), I am quite satisfied that the failure of the parties to complete the transaction in a timely fashion is largely the fault of the claimant. In my judgment the defendants were justified in making the application of 24 April 2025. The fact that they did not win every point that they argued does not mean that they cannot be regarded as the successful party in achieving the order which I made. On the contrary, overall I think that they were. Accordingly, if the costs “general rule” applies, I should order the claimant to pay the defendants’ costs of the application.

32. As I have already said, the claimant says that the defendants have not demonstrated various matters to bring the application within CPR rule 36.14(8), and so it could not succeed anyway. He also says that the application was premature, and, thirdly, that the court could not have made an order under section 39 of the Senior Courts Act 1981 . Prematurity

33. First of all, in my judgment, the application was not premature. The deal had been done as long ago as June 2024, when the Part 36 offer had been accepted. The claimant did not have to accept the offer, but he chose to do so, many months after it had been made, and rather out of the blue. The defendants’ application to enforce that acceptance was issued in April 2025 This was some 10 months later, when, despite long (and no doubt expensive, and emotionally wearing) correspondence between the parties, there were still no completely agreed settlement documents to be signed. Frankly, in these circumstances it ill behoves the claimant now to say in effect that there was no sufficient agreement to justify an application to the court to enforce that acceptance. The point of Part 36 is to create a settlement of existing litigation, not to create a springboard for further, satellite litigation. In my view, this acceptance did create an enforceable agreement, and it is time that it was enforced. Section 39 of the Senior Courts Act 1981

34. Secondly, there is the question whether the court could have made an order under section 39 of the Senior Courts Act 1981 , on the basis that the claimant had not by then then neglected to sign the documents. Section 39(1) relevantly provides: “Where the High Court … has given or made a judgment or order directing a person to execute any conveyance, contract or other document … then, if that person— (a) neglects or refuses to comply with the judgment or order … [that court] may, on such terms and conditions, if any, as may be just, order that the conveyance, contract or other document shall be executed … by such person as the court may nominate for that purpose.”

35. I was referred to Isbilen v Turk [2021] EWHC 3425 (Ch) . I agree that, in that case, deputy judge Stuart Isaacs QC said: “45. … I am not satisfied that there is jurisdiction under section 39(1) to make the orders requested. If Mr Turk is himself ordered to produce the requested statements and declines to comply with the order, he may be in contempt of court and the jurisdiction under section 39(1) comes into play. But Mr Turk has not currently neglected or refused to comply with the orders made on the Disclosure Applications. If he were to do so, then the court's jurisdiction under section 39(1) would be triggered and the court would have to consider whether to order that another person should execute the documents necessary to obtain the requested documents. There is no jurisdiction under section 39(1) to make an order against Mr Turk himself.”

36. However, it does not appear from the judgment of the deputy judge that he was referred to the decision of Parker J in Savage v Norton [1908] 1 Ch 290 . By that decision, the judge refused to make an anticipatory order under the predecessor of section 39 , but said (at 297): “I do not decide that there is no case in which the Court may make an anticipatory order, because it may be that the person ordered to transfer has in fact by his conduct already shewn the Court that he does and will refuse to do the act which is ordered to be done, in which case the Court may, shewing on the face of the order that there was that refusal, make an order at once in very much the same terms as those of the order in the present case.”

37. And, much more recently, in Juul Labs, Inc v Quick Juul Ltd [2018] EWHC 3335 (IPEC) , Snowden J in fact made such an anticipatory order, saying: “I also think it is appropriate to include the provisions for a Master to execute the letters in default of compliance in the same order as the requirement upon the defendants to execute the documents. Under section 39 of the Senior Courts Act 1981 , although it is not generally the case that one makes an order in anticipation of a failure to execute, that can be done where the defendant has already shown by his conduct that he refuses and will refuse to execute: see Savage v Norton [1908] 1 Ch 290 .” The same point was made in Century Property (Leeds) Ltd v Eville & Jones Group Ltd [2025] EWHC 1348 (KB), [35].

38. I regret that I must also record that that neither Savage v Norton nor Juul Labs, Inc v Quick Juul Ltd was cited to me (by either side) in Gee v Gee [2020] EWHC 1842 (Ch) . This was another case where this point was raised. In my judgment in that case I said: “26. It was common ground at the hearing that the words ‘neglects or refuses to comply with the judgment or order’ in subsection (1)(a) are jurisdictional, so that the court cannot make an order under this section unless it is first satisfied that the test represented by those words (or the alternative in paragraph (b)) is met.” Had I known of those decisions, I should at least have been more circumspect in what I said there. Since the point was not argued, I cannot be sure of what my decision would have been if it had, though I think that my inclination would have been to follow the recent decision of Snowden J.

39. However, I do not think it is necessary for me to reach any conclusion in the present case, either as to whether the words ‘neglects or refuses to comply with the judgment or order’ in subsection (1)(a) are jurisdictional, or (if not) as to whether the claimant’s conduct hitherto in this case showed that he would not comply with any order to execute the documents. This is because, even if the court would not have made the order under section 39 , that was only a minor part of the relief being sought by the defendants on this application. As I pointed out earlier, it is not necessary to succeed on all points in order to be the successful party overall. Honouring the terms of the offer

40. Thirdly, on the material before me, I am satisfied that the claimant has not in fact honoured the terms of the offer. The claimant expressly accepted it, but then has sought to add further terms to the offer, and has made them in effect conditions of acceptance, even after the event. These include (amongst other things) the claimant’s request for assistance with an adverse possession claim against a third party, the question of the payment of upkeep of accessways, a requirement for fresh documents to enable the claimant to secure borrowing for his own contractual commitments, a provision to deal with the possession proceedings brought by the defendants against the claimant, and provision of an indemnity by the company in relation to assets to be transferred by the company to the claimant.

41. In my opinion, it is far too late for any of this. If the claimant wanted any of these things (and indeed others referred to in the correspondence) to be included in the Part 36 deal, then he should have refused to accept the offer, and made a counter-offer. But he did not. Instead, he accepted the offer. Conclusion on the incidence of costs

42. In my judgment, the defendants are entitled to hold him to the contract thus created between them, subject to any subsequently agreed variation. The defendants have succeeded overall in this application. I consider that there is no good reason not to award the costs of that application to the defendants. Assessment of costs

43. The next question is assessment. The application lasted less than one day, and so the general rule is that there should be a summary assessment: CPR PD 44 paragraph 9(2)(b). Both parties ask me to assess the costs summarily, and I see no reason not to do so. The defendants have produced two statements of costs. The first is for the hearing on 9 May 2025, and it is dated the previous day. It is for a total of £21,273 plus applicable VAT. This includes £12,984 in profit costs (of which £6,869 are in respect of work done on documents) and £7,750 are in respect of counsel’s fees. They have also produced a second statement of costs, stated to be in respect of the same hearing, though dated 4 July 2025 (when it was filed), for a total of £10,882.50, again plus applicable VAT. This includes profit costs of £7,382.50 (of which £3,832.50 was for work done on the documents) and counsel’s fees of £3,500. I infer from the date of the statement and the dates given for the work done on documents that it relates to work done after the hearing and until the written submissions were filed. By way of comparison, the claimant has a single statement of costs, updated 20 June 2025 (the date it was filed), to include events after the hearing, in the total sum of £35,712.96, plus applicable VAT, including £24,233 profit costs (of which £15,943 were in respect of work done on documents) and counsel’s fees of £10,876.66.

44. I should say that, in the written submissions, both sides criticise the statement of costs prepared by the other side, on the basis that hourly rates exceed the guideline rates, there is over reliance upon partner time and, fees are not reasonable and proportionate. I note however that the two statements of the defendants in total are for a sum which is less than that in the single statement of the claimant, and this although the defendants were the applicants in the application (who usually make the running and have more to do) and the claimant was the respondent.

45. First there is the question of hourly rates for solicitors. The defendants’ solicitors are based in Huntingdon, which falls within national band 2. The defendants claim for solicitors in Grade A and Grade C. The guideline hourly rates for such solicitors in those bands since January 2025 are £282 and £196 respectively. The rates claimed by the defendants’ solicitors are £350 and £345 for grade A and £200 for grade C. No justification has been advanced for charging in excess of the guideline rates, at least in respect of grade A fee earner time, and so some reduction must be made to reflect that.

46. Secondly there is the question of delegation of work to appropriate fee earners, so that a more expensive fee earner is not used for something that could be done by someone less expensive. This is usually manifested by excessive use of partner time. In my judgment the work has been delegated properly here, and the claimant’s complaint is not made out. There is also a specific complaint about the amount of time needed to review and comment on the claimant’s further cost submissions in reply and I think there is some merit in that. I will make a small reduction on that account.

47. Considering the reductions indicated, and bearing in mind that this assessment is a broadbrush exercise, I will therefore reduce the defendants’ solicitors’ profit costs to £19,500 in total, plus applicable VAT. The disbursements (of £11,250 plus VAT for counsel, £313 court fee and £226 other expenses) will remain as shown. Although the amounts claimed by the defendants in respect of this application are high, I think that that is simply a reflection of the degree of hostility and intransigence which has characterised this litigation throughout, leading to the need for more lawyer time to be spent on the matter. It is the price of being difficult. Overall, I do not think that the costs claimed are disproportionate to the importance and value of the exercise to the parties. Conclusion

48. I will order the claimant to pay the costs of the defendants on the standard basis, assessed summarily at £30,750 (including counsel’s fees), and other disbursements of £539 (no VAT). Costs as assessed will be payable in 14 days from today. I should be grateful to receive an agreed minute of order for approval.