Andrew Grijns v Janice Grijns & Ors

By my order dated 12 June 2025, made on the handing down of judgment in this claim, I dismissed all of the Claimant’s claims, declared that the First Defendant, Janice Grijns (Janice), was the sole legal and beneficial owner of premises at and known as 31 and 31A Bury Walk, in Chelsea (the Property), declared that the Claimant, Andrew Grijns (Andrew), had, until vacating the Property on 30 May 2025, occupied the property as a trespasser since 1 August 2023 and made orders in respect of mesne profits, arising from Andrew’s unlawful occupation of the Property in that period. I further determined that Andrew should account to Janice for the net income that he had received from the letting of 31A, since 10 May 2023, subject to any question of double-counting arising out of my order in respect of mesne profits.

I further directed that a two-day hearing be listed to determine matters consequential to the handed down judgment. At that hearing, on 19 and 20 August 2025, I directed that the period in which Andrew should account for the letting income he had received from 31A should, having regard to his parallel liability to pay mesne profits, in respect of part of the period otherwise covered by the rental account, be limited to the period from 10 May 2023 to 1 August 2023. I had earlier, i the course of the handed down judgment, determined that Janice’s claim for an account of profits in respect of the letting of 31A, from June 2020 should be limited to the period commencing 10 May 2023. In the result, therefore, the only rental account that I directed in respect of 31A was for the period 10 May 2023 to 1 August 2023. This, however, was the only matter, whether in respect of Andrew’s claim and Janice’s counterclaim, upon which Andrew succeeded at trial. In every other respect his claims and his defences to Janice’s counterclaim failed.

Andrew’s primary claim had been that, by way of the application of the doctrine of proprietary estoppel, he was entitled to a substantial beneficial interest (two thirds) in the Property.

The Property is a four-bedroomed Georgian terraced house, in Chelsea, which includes (31A) a self-contained flat on the lower ground floor. It had been purchased by Andrew’s parents in 1994 and, on the death of Andrew’s father, in 2019, it had vested in Andrew’s mother, Janice, by way of survivorship. As at July 2024, the Property, which is unencumbered, was valued at circa £3.85M. Andrew had, until his licence to occupy the Property had bee terminated, no later than 1 August 2023, been allowed by his parents, latterly his mother, to live there since 1999.

Andrew’s secondary claim, arising out of an incident at the Property on 10 June 2023, when Andrew refused to allow his mother access to the Property and when his mother and his brothers, the Second to Fourth Defendants, forcibly entered the Property, was a claim in trespass, alternatively for equitable compensation, in respect of which he sought aggravated and exemplary damages.

The history and circumstances giving rise to all of these proceedings, claim and counterclaim, are fully recorded and set out in my handed down judgment, [2025] EWHC 1413 (Ch) to which reference will be made, as necessary, in the course of this judgment.

Despite the total failure of Andrew’s claim and despite Andrew’s only success in resisting his mother’s counterclaim having been to limit his liability to account for rent, in part only by reason of his parallel liability to pay mesne profits, in respect of part of the period for which he would otherwise be accountable, Andrew’s counsel, Mr Boyd, who has left no stone unturned in support of his client’s position, submitted that I should make no order as to the costs of either the claim or the counterclaim. Conversely, Ms Haren KC, for Janice and the other Defendants, submits that all the costs of claim and counterclaim should fall on Andrew and that they should be assessed on the indemnity basis. This judgment addresses and resolves these issues and determines both the incidence of costs, as between the parties and the basis upon which any assessment of those costs should be conducted.

Ms Haren’s submission as to the incidence of costs is straightforward. Her clients have defeated Andrew’s claims in their entirety and Janice has, save as to the account of profits, where her success has been limited, succeeded, also, on her counterclaim. That account, she submits, viewed in the context of this litigation, taken as a whole, was no more than a minor and peripheral issue and not one that should, accordingly, affect the incidence of costs. Janice and, as relevant, the other Defendants have won their case and they should have their costs. As to the basis upon which those costs should be assessed, she submits that, by reason both of the intrinsic lack of merit in the case advanced by Andrew and of Andrew’s conduct of this litigation, it is appropriate that the assessment should be on the indemnity basis.

In regard to the incidence of costs, there is obvious force in Ms Haren’s submission. Andrew’s claim has been dismissed in its entirety. Janice’s counterclaim, determining her status as the absolute legal and beneficial owner of the Property and Andrew’s status as a trespasser at the Property since no later than August 2023 has succeeded. Andrew has been ordered to pay substantial mesne profits. The only issue upon which Andrew has had any success has been in limiting his liability to account for the profits he achieved by renting out 31A. Even that success turned, in part, upon his parallel liability to pay mesne profits during the period in which otherwise he would have been accountable.

There can be no doubt, in this context, as to who has been the winner in these proceedings. The core and fundamental issue before the court at trial was the question as to whether Andrew was entitled to a substantial interest in the Property, by reason of his detrimental reliance upon assurances made to him by his parents. On that issue and all others, other than the accounting issue, Andrew conclusively lost. All those other issues were secondary, peripheral and, to a significant extent, parasitic upon the core issue. Of those secondary and peripheral issues, the most peripheral of all, arising, as it did, as a single aspect of the complex and shifting relationship between Andrew and his mother, which fell to be examined in the course of the trial, was the question of Andrew’s accountability to his mother for lettings of 31A and for the profits generated therefrom.

The clear starting point, in these circumstances, is that Janice and, to the extent relevant, Andrew’s three brothers, should, as the successful parties, have their costs. Costs should, in the usual way, follow the event and, looked at in the round, there is no doubt but that Janice and her three other children have won the event. The only outstanding question, in this scenario, is whether any allowance should be made in Andrew’s favour to reflect Andrew’s modest success on the accounting issue.

Mr Boyd submitted, in this regard, that there should be a reduction of 10% in the Defendants’ recoverable costs. I disagree.

I am not persuaded that the accounting issue added any significant amount to the costs of this litigation, or that the time taken in dealing with the issue, whether in preparation or at trial, has had any significant bearing on costs. The determination of the proprietary estoppel issue required a detailed consideration of the relationship between Andrew and his parents, primarily his mother, extending over many years, that relationship being heavily documented by way of text and email exchanges. The factual narrative is set out in the handed down judgment, at paragraphs 13 to 136 and the circumstances pertaining to the accounting issue are weaved into and form part of that narrative. They would have formed part of that narrative and part of the context within which Andrew’s claim fell to be considered whether or not those circumstances had given rise to a separate issue.

Correspondingly, disclosure pertaining to the accounting issue necessarily formed a part of the overall body of disclosure, going to the relationship between Andrew and his parents, the assurances allegedly made to him, his allegedly detrimental reliance thereon and, conversely, the countervailing benefits which Andrew obtained, arising from his continued occupation and use of the Property, over many years. While, in the event and, as appears from paragraphs 241 to 243 and 267 of my handed down judgment, I did not choose to bring into account Andrew’s rental profits, given that Janice was contending that Andrew was accountable for those profits, there can be no doubt but that those profits were potentially relevant to that issue, as well as forming a material part of the overall factual circumstances which fell to be considered by the court in determining why Andrew had shaped his life in the way that he did.

In regard to preparation, in respect of the accounting issue and the part of the trial devoted to the issue, a fair representation of those matters can be conveyed by the fact that, in dealing with the issue in my judgment, I devoted only 8 paragraphs of a 333 paragraph judgment to my determination of the issue.

Taken as a whole, I am satisfied that the accounting issue, minor and peripheral in itself, in the context of the core question for determination, has had no significant bearing on the costs of this litigation and that, accordingly, this is not a case where Andrew’s partial success on the issue should give rise to any allowance in his favour against any liability that he should otherwise bear for the costs of this litigation.

Mr Boyd’s broader submissions related to the pre-litigation conduct, or, as he would, perhaps, characterise it, misconduct of Janice and Andrew’s three brothers, embodied in, or arising out of the events of 10 June 2023 and to the attitude adopted by Janice and Andrew’s brothers towards the potential mediation, or settlement, of this litigation. He submits that, in respect of the Defendants’ pre-litigation conduct the successful Defendants should be penalised 50% of any costs to which they should otherwise be entitled and that, correspondingly, their attitude to mediation and settlement should result in a 30% to 50% deduction in costs. It is on the back of these two submissions that he founds his overall submission that there should be no order as to costs made in respect of this litigation.

The events of 10 June 2023, together with the immediate preamble to those events and the sequel to those events are set out at paragraphs 117 to 136 of the handed down judgment. My determination as to the legality of the Defendants’ conduct on 10 June is set out in the judgment, at paragraph 283 and at paragraphs 291 to 298. Their conduct was entirely lawful.

Mr Boyd submitted, nonetheless, that, having regard to the legal advice the Defendants had been given, they had ‘cut corners’ and wrongly and unreasonably sought to implement a self-help remedy, in respect of securing possession. That submission, however, wholly mischaracterised my findings. My conclusion, as set out in paragraphs 125 and 129 of the handed down judgment, was that the Defendants’ intention, on 10 June 2023, was not to remove Andrew from possession, or to effect a self-help remedy in respect of possession, or to ‘cut corners’ in respect of possession, but to attempt, as Derek Grijns put it, in a text to his mother, on 10 May 2023 (paragraph 124 of the handed down judgment) to stop the legal process and to negotiate ‘something or anything’ with Andrew.

There was, in itself, nothing wrong and much right with that approach. Where it went wrong, in retrospect and as I explain in paragraph 126 of the handed down judgment, was in the Defendants’ failure to inform Andrew of their intended visit. As it transpired, that turned out to have been ill-advised. Ill-advised, however, or not, there was nothing in their behaviour to justify Andrew’s refusal to open the door to his mother, or to preclude the Defendants from recovering their costs of successfully resisting Andrew’s claim in trespass, let alone to penalise Janice and the other Defendants in respect of their recovery of their costs of successfully resisting Andrew’s unfounded claim in proprietary estoppel.

If and in so far as it was suggested that the Defendants’ conduct on 10 June 2023, in some way prejudiced, or precluded, an early settlement of the dispute underlying this litigation and, therefore, that that should affect the incidence of costs, it is worth reiterating that it was, as last stated and as explained in paragraph 291 of the handed down judgment, Andrew’s unlawful act in refusing his mother access to her own home which triggered the confrontation that took place on that date.

Taking a wider view, there is no reason at all to believe that if the events of 10 June 2023 had not taken place that would have resulted in a settlement of the core dispute.

It is apparent from the correspondence between Andrew and Janice’s then advisers, prior to 10 June 2023, that the parties were very far apart and that Andrew was challenging his mother’s capacity and asserting that his brothers were exercising undue influence over her, while, at the same time, threatening that she would be cross-examined as to her tax affairs (letters of 12 April 2023, 2 May 2023 and 15.May 2023). In his 15 May 2023 letter, in which he first mentions the principles of proprietary estoppel, upon which he , ultimately and unsuccessfully sought to rely, he asserted a claim to an 100% interest in the Property. He had previously (2 May 2023), by his then, direct access counsel, asserted that he had the benefit of an unregistered TR1 in respect of the property. His offer to settle, at that stage, described by him as a ‘hard offer’ and ‘not negotiable’, was that he should receive 55% of the gross market sale price of the Property. At that stage, on 16 May 2025, Janice was prepared to offer Andrew, along with each of his brothers, £200,000 from the proceeds of the property.

Given the antipathy between Andrew and, particularly, his brothers, as disclosed in the letters just mentioned and in the surrounding correspondence at that time and given the difference in perception between Andrew’s apparent belief as to his rights and that of his family (a difference of perception and expectation which, as set out later in this judgment, persisted within this litigation through to trial) it is simply unrealistic to think that the events of 10 June blocked the opportunity for a successful settlement. I would go so far as to say, given the antipathy disclosed in this correspondence, that the events of 10 June 2023 did not, in any significant way, modify, or alter the relationship between Andrew and his family, as it had existed prior to that day.

In the result, I am satisfied that the events of 10 June 2023 should have no adverse bearing upon Janice and the other Defendants’ entitlement to their costs of this litigation.

Mr Boyd’s other main submission, as outlined in paragraph 17 of this judgment, related to the attitude that, he submitted, the Defendants had adopted in respect of mediation and settlement and the costs penalty that, he submitted they should bear as a result of that attitude.

The burden of Mr Boyd’s submission was that Janice and his three brothers unreasonably failed to engage in ADR, or to respond to a number of Calderbank offers made by Andrew across the course of the litigation.

In regard to ADR and mediation, Mr Boyd placed understandable reliance upon the court of Appeal’s seminal decision, in Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002, in which the Court of Appeal decided that an unreasonable refusal to mediate might justify a departure from the usual costs order. He placed emphasis, also, on the judgment of Briggs LJ, as he then was, in PGF II SA v OMFS Co Ltd [2014] 1WLR 1386, upon Jackson ADR Handbook, 4^th Edition, 2025, paras. 11.64and 11.65 and upon the endorsement by Briggs LJ, in PGF II, of the approach to be adopted in dealing with a serious request to mediate, as set out in the equivalent paragraphs of Jackson, as at the date of PGF II. He drew my attention, also, to the judgment of HH Judge Waksman QC (as he then was), in Garritt-Critchley and Others v Ronnan and Solarpower PV Ltd [2025] 3 Costs LR 453 and to the discussion by the judge, in that case, of the merits and possibilities of mediation, even in otherwise apparently unfavourable circumstances. Having regard to the direction of Master McQuail, in her order, as to ADR, dated 23 September 2024, to which reference will later be made, reliance is also placed, in respect of the importance of compliance with such a direction, upon the judgment of Griffiths J, in DSN v Blackpool FC [2020[ Costs LR 359.

In regard to the approach that the Defendants should, Mr Boyd submits, have adopted in respect of Andrew’s Calderbank offers, some reliance was placed upon a dictum of Sir Geoffrey Vos C (as he then was), in OMV Petrom SA vGlencore International AG [2017] EWCA Civ. 195, at paragraph 39, cited at paragraph 29 in DSN, which, in the context of Part 36 offers, reiterated the obligation of parties in litigation to make reasonable efforts to settle and to respond properly to such offers. Reliance was also placed upon the judgment of Simon Brown LJ, in Kiam v MGN Ltd No.2) [2002] EWCA Civ. 66, to the effect that, even outside the context of CPR 36, an unreasonable refusal to accept a settlement offer might, in rare and, as I read it, extreme circumstances, result in the refusing party being ordered to pay indemnity costs. Founded upon that judgment, Mr Boyd submitted that a winning litigant who refused a reasonable offer, or failed to seek to negotiate a settlement based upon that offer could and, he submitted, in this case, should be penalised in costs.

The authorities mentioned in paragraph 28 of this judgment go, primarily, to two separate situations: the situation where a party refuses to mediate and the situation where, without positive refusal, a party simply fails to respond to a serious request to mediate.

As set out later in this judgment, this is not a case where the Defendants ever refused to mediate. In consequence, the question as to whether or not it would have been reasonable for them to refuse mediation is not, in this case directly in point. That said, in a case where, as here there has been no mediation and where the Defendants are said to have been unreasonable in their approach to mediation, the existence, or otherwise, of factors, in the case, that would have justified a refusal to mediate is plainly relevant to the overall reasonableness, or otherwise, of the Defendants’ approach to mediation.

In regard to the second situation, the starting point, where there has been a failure to respond to a serious request to mediate, is that the party failing to respond is normally to be regarded as having acted unreasonably. In PGF II at paragraph 34, Briggs LJ, in endorsing the practice set out in the ADRHandbook, explained that, as a general rule, a failure to respond to a serious request to mediate, even if, at the date of the request, good grounds existed for a refusal to mediate, or a refusal to mediate along the lines requested, was, in itself, to be regarded as unreasonable. He made plain, however, that the ‘rule’ he advanced was a general rule and not an invariable rule and that there would be circumstances where it would be inappropriate to characterise a failure to respond to a request to mediate as unreasonable and where the treatment of a failure to respond as automatically unreasonable would be ‘pure formalism’.

Briggs LJ explained, further, at paragraph 51 that, even in circumstances where the failure to respond to a request to mediate was to be regarded as unreasonable, that fact would not automatically give rise to a costs penalty but was properly to be regarded as one aspect of the overall conduct of the parties to be addressed in the balancing process when determining the incidence of costs.

What I take from the foregoing is that, while recognising the importance of the general rule, as identified by Briggs LJ, there will inevitably be cases where the general will yield to the particular and where an over emphasis upon the general rule will give rise to a danger that the court’s response to a failure to respond to a request to mediate will become formulaic. The ultimate question, in any case, must be whether, on particular facts, the conduct of the party who fails to respond to a request to mediate has been unreasonable. What I take, also, from the foregoing is that a lack of response to a request to mediate, even one seriously made, is only one factor in the overall consideration of conduct, as applied in determining the incidence of costs and will not, therefore, automatically and without more give rise to a penalty in costs.

Support, I think, for both these conclusions can be found in the judgment of Patten LJ, with whom both other members of the court agreed, in Gore vNaheed [2017] 3 Costs LR 509, in which the Court of Appeal declined to intervene with a trial judge’s conclusion that, on the facts of that case, that a failure to respond to a request to mediate was not unreasonable and should not result in a costs penalty.

In this case, Mr Boyd contends that there has been a consistent failure by the Defendants to respond to repeated requests that the dispute be mediated, that the general rule is applicable and that a serious costs penalty should, notwithstanding any other circumstances, be inflicted upon Janice and Andrew’s three brothers. He reinforces that submission, as already stated, by reference, as he submits, to the failure of the Defendants to properly engage with Andrew’s Calderbank offers

Ms Haren submits, in effect, that, on the particular facts, Mr Boyd’s approach is over simplistic and that, taken overall, her clients’ conduct as to mediation, ADR and settlement has been reasonable and not conduct to be penalised in costs and that far from her clients being penalised in costs, when all relevant factors are brought into the balancing exercise as to costs, including, in this regard, the merits of the litigation advanced by Andrew, her clients should be entitled to all their costs and upon the indemnity basis.

Given the width of Ms Haren’s submission, the sensible starting point, in respect of this aspect of the matter, is to determine the appropriate incidence and basis of costs, absent any potential penalty arising out of the Defendants’ approach to mediation and settlement, and then to consider whether the Defendants’ conduct in either, or both, of those regards should give rise to any (and, if so, what) adjustment in either the basis or the incidence of costs.

As already set out, this is a case where Janice and the other three Defendants have won the event and, subject to any adjustment in favour of Andrew, flowing from their conduct in respect of mediation and settlement, should have their costs. The outstanding question, subject to any such adjustment, is whether those costs should be awarded upon the standard basis or upon the indemnity basis.

The broad principles applicable to an award of costs on the indemnity basis are well understood. The conduct of the party against whom an award of indemnity costs is sought, in bringing or in conducting the litigation in question must be outside the ’norm’ attaching to such litigation. There is no need for the court to make any finding of impropriety, or dishonesty, although, obviously, such findings are likely to pave the way for an order for indemnity costs. Even where the conduct relied upon as the basis for an order for indemnity costs is demonstrably outside the ‘norm’, the court retains a discretion not to award costs on the indemnity basis.

The situations where it is appropriate to award cost on an indemnity basis will, necessarily, embrace a wide and almost infinitely various range of circumstances and an indemnity costs order will always be fact sensitive, That said, there are, as explained in a number of the authorities, forms of conduct which are more likely than not to call for an award of indemnity costs, with the consequence that the court assessing those costs will no longer be concerned with the question of proportionality in respect of costs incurred.

In this regard the judgment of Tomlinson J, as he then was, in Three Rivers District Council v Bank of England [2006] 5 Costs LR 714, continues to provide useful guidance. Having reviewed a number of authorities and having reiterated that the core criterion was unreasonableness rather than conduct attracting moral condemnation and that the court’s task, in this context, was to review the Claimant’s conduct across the entirety of the proceedings, Tomlinson J identified several separate sets of circumstances which should guide the court in respect of and, in effect, towards an order for indemnity costs. Those circumstances include cases where a claim is speculative, weak, opportunistic, or thin and where, in pursuing the litigation, the claimant takes a high risk of indemnity costs should the claim fail. They include, also, cases where a claim is far fetched and irreconcilable with the contemporaneous documents.

To the foregoing I would add, although not specifically mentioned by Tomlinson J, cases where the evidence advanced in support of a claim is, in material respects, dishonest. I would, also, aligning myself with Hildyard J, in Hosking v Apax Partners LLP [2018]5 Costs LR 1125 at paragraph 99, make mention of cases where it can be discerned that the true purpose of the claim is to exact a settlement rather than to achieve a strict adjudication of the claimant’s rights.

Although the determination of this case gave rise to a lengthy, detailed and expensive factual enquiry, this was, when that enquiry was completed, always a very weak claim, which failed at every level.

Mr Boyd, in argument, sought to challenge the weakness of his client’s claim by reference to the fact that the Defendants had not seen fit to seek a summary dismissal of the claim, or to take steps to secure the discharge of the interlocutory injunction Andrew had obtained on 13 June 2023, as set out in paragraph 136 of the handed down judgment, or the undertakings by which, from 5 July 2023, that injunction was replaced. That was, with respect, an unrealistic submission.

The detailed factual investigation which is the hallmark of this kind of litigation makes it, necessarily, unsuitable for the grant of summary relief. An application for such relief, or, correspondingly, an application to discharge an injunction or discharge undertakings would, inevitably, require just the kind of mini-trial which the courts have long regarded as inappropriate in respect of such applications.

In this case, at the termination and conclusion of the relevant factual enquiry, none of the ingredients of the pleaded proprietary estoppel were shown to have been established. The pleaded assurances, or promises, alleged were never made and, correspondingly and necessarily, there could not be and there was not any reliance placed thereon. Had there been such assurances, or such reliance, there was, because of the very considerable countervailing benefits obtained by Andrew, over his many years of heavily subsidised occupation, no substantial detriment. Overall and given those advantages, coupled, sadly, with Andrew’s own conduct towards his mother, there would have been nothing unconscionable if Janice had resiled from any promises that she had made as to Andrew about the Property. She, in fact, made none.

This is not a case where the pleaded assurances were not ‘made out’, in the sense of not being established with an appropriate degree of clarity. In this case, as is set out in paragraphs 205 and 259 of the handed down judgment, I am satisfied, for all the reasons exhaustively set out in the handed down judgment, that the assurances alleged by Andrew were simply never made and, correspondingly, that his evidence as to those assurances, unsurprisingly, in these circumstances, generic and imprecise (paragraph 199 of the handed down judgment) was, to his knowledge, untrue. In blunt terms, the assurances, which constituted the core of Andrew’s case, were and must have been invented, as part of the ‘constructive’ process identified in paragraphs 216 and 217 of the handed own judgment.

In making this determination, Andrew’s case as to the assurances he alleged was tested against the available and substantial contemporaneous evidence, including, in particular, Andrew’s own conduct and reaction in respect of matters relating to the Property. As set out in paragraphs 219 to 231 and paragraphs 247 to 256 of the handed down judgment, none of the contemporaneous material supports Andrew’s case, as to the assurances allegedly made, and much, if not all, of that material is wholly inconsistent with his case.

The true and stark position, as set out in paragraph 237 of the handed down judgment, was that Andrew chose to remain and make his life at the Property not because of any assurances made (there were none) but because it suited him.

The corollary of all of this, for current purposes, is that this was not merely a weak case and one where the case advanced by Andrew, at trial, did not, in any realistic sense, reflect the contemporaneous dealings between himself and his mother and father, but was one where his evidence as to the core assurances, fundamental to his case, was untrue and had been ‘constructed’, or concocted, for purposes of this litigation. Even putting to one side any question of dishonesty, such a case is, manifestly, well outside the ‘norm’ and, manifestly, just the kind of high risk litigation that, as Tomlinson J indicated in Three Rivers, could be expected to give rise to an order for indemnity costs. When once the ingredient of concoction, or invention, is added to the mix, then the matter becomes, as it seems to me, a fortiori.

Interlinked with the foregoing, Ms Haren KC submits that, particularly when taken together with other pressures that she says Andrew sought to place upon his mother, as discussed in the next following paragraphs of this judgment (paragraphs 55 to 64), Andrew’s approach to this litigation can properly be seen as one where, borrowing a phrase from Hildyard J’s judgment in Hosking, at paragraphs 50 and 51, the litigation was pursued as an ‘anvil for settlement’; that is to say was pursued not on its genuine merits but as a medium for exacting a settlement upon terms unrelated to the merits, or lack of them, of the case he advanced.

I tend to agree. It seems to me that this litigation was pursued by Andrew as, in effect, a continuation of his efforts, described in the handed down judgment, at paragraphs 248 to 256, to preserve, or even enhance, what he undoubtedly saw as his rightful inheritance in respect of his mother’s United Kingdom estate and to ensure that, even if the Property was sold, he secured, one way or another, his ‘entitlement’, in respect of that estate and that he was not, in his terms and as explained in paragraphs 53 and 248 of the handed own judgment, ‘disinherited’.

To that end and as already explained, Andrew was prepared to ‘construct’ a case and assert assurances by his mother that were never made, in the hope, not realised, that a settlement would be achieved and the claim would not be fully investigated at a trial.

It further seems to me that, over and above the pressure implicit in the pursuit of unfounded litigation against an elderly woman, Andrew chose to add to the pressures imposed upon his mother both by raising and pleading issues as to her capacity and then, late in the day, by issuing contempt proceedings against her, in respect of a number of intemperate messages she had sent to Andrew and to City Relay in August 2023.

As set out in paragraph 86 of the handed down judgment, Janice’s alleged reduced capacity was pleaded against her, in respect of her alleged incapacity to give a valid notice in terminating Andrew’s occupancy of the Property. Although pleaded and although forming part of Mr Boyd’s cross examination of Janice and although never formally abandoned by Andrew, it was not further pursued at the trial.

Contrary, however, to what appears in paragraph 86, it emerged at the hearing to which this judgment relates that Andrew had raised questions of Janice’s capacity on two occasions; prior to the commencement of this litigation (letter 2 May 2023) and in its early interlocutory stages (letters of 9 and 14 November 2023).

In regard to the 2 May letter, Grosvenor Law, then acting for the Defendants informed Andrew that they were well aware of their professional responsibilities in respect of capacity.

In regard to the 14 November letter, which, as discussed later in this judgment, contained one of Andrew’s three Calderbank offers, Andrew chose to remind Withers, by now acting for Janice, that ‘questions of capacity … would be at the forefront’ of his case and that a trial would be ‘emotionally difficult’ for her. Withers’ response, by letter of 16 February 2024, embracing both this correspondence, Andrew’s pleadings on the capacity issue and his list of issues for the CMC which took place on 18 March 2024, was to respond firmly and in some detail to Andrew’s averments as to capacity. They were satisfied as to her capacity. They had received a medical assessment as to her capacity and they had sought and received a third party personal assessment as to her capacity

I add, for completeness, that in the immediate ‘run up’ to the trial, when the parties were in discussion as to whether Janice’s evidence should be given via video-link (as was ultimately the case), a further assessment of Janice’s physical and mental condition, confirming her mental capacity, was provided by her American doctor and relayed to Mr Boyd.

What is striking about the foregoing is that Andrew was never prepared to ‘follow through’ on the issue of capacity. If he had genuinely believed, notwithstanding the assurances he had received from those advising Janice, that her capacity was in question he could and indeed should have applied to the court for the resolution if the question. If, correspondingly, he had seriously intended to make good his contention as to capacity at trial, then he should have properly pursued the issue and taken the appropriate steps to secure medical evidence in support of his contention. He did neither of these things and I am left with the clear conclusion, borne out by his veiled warning, in his letter of 14 November 2023 that the trial would be ‘emotionally difficult’ for his mother, that the entire capacity issue was never intended for determination but was raised to enhance the pressure on his mother to settle his unfounded claim.

I regret to say that I see Andrew’s late application to commit Janice in much the same light. That application was issued on 11 October 2024, a little over one month before this claim was listed for trial. As already indicated it was founded upon three intemperate messages that Janice had sent to Andrew and to the letting agency that Andrew had used in respect of the letting of 31A. The application has never been pursued to a hearing.

It is hard not to see the timing of this application as anything other than an attempt to impose additional pressure on Janice, in the period immediately prior to trial, while, at the same time, inevitably disrupting trial preparation. The allegations that he chose to raise were, as it was put to me by Ms Haren KC, ‘historic’ and, if regarded as worthy of the court’s attention and as genuinely damaging to Andrew, who persisted in letting via City Relay, notwithstanding the communications in question, they should have been raised timeously.

Putting aside the question as to whether it was appropriate to institute contempt proceedings while, at the same time, questioning the capacity of the alleged contemnor, it is clear to me that Andrew’s motives in respect of the application were not founded in a genuine belief that he had been damaged by his mother’s conduct, in a way that required the exercise of the court’s contempt jurisdiction, but were concerned, rather, with the tactical imposition of pressure upon his mother, in the hope of facilitating a settlement, in his favour, of what I reiterate to have been wholly unfounded litigation.

In the result, I am entirely satisfied that, standing in isolation, Andrew’s conduct of this litigation clearly warrants an order for indemnity costs and that there is no discretionary reason not to make such an award. It remains to consider, as explained in paragraph 38 of this judgment, whether there is anything in the Defendants’ conduct of this litigation, in regard to mediation or settlement, that sufficiently detracts from the conclusions just reached as to modify either the basis, or the incidence of costs, as otherwise determined.

In regard to settlement, I am entirely unpersuaded that the Defendants approach to Andrew’s settlement offers warrants any criticism.

Andrew made four offers. His first offer, dated 15 May 2023 and already mentioned in paragraph 23 of this judgment, was said to be, as already set out, a ‘hard’ and non-negotiable offer whereby Andrew would receive 55% of the gross proceeds of sale. His second offer, dated 14 November 2023, already mentioned in paragraph 59 of this judgment, was that Andrew should receive 40% of the net proceeds of sale, remain in occupation of the Property, until after exchange of contracts for its sale and assist in the sale process. Under that offer there would be no order as to costs. The third of Andrew’s offers was dated 17 May 2024, was that the Property be sold, that Andrew should be entitled to remain in occupation until after exchange of contacts and assist in the sale of the Property, that 40% of the proceeds of sale, on sale, be held by solicitors, pending the resolution of the litigation and that there should be no order as to the costs of the litigation. Andrew’s final offer, dated 25 October 2024, was that he should receive 25% of the net proceeds of sale, be entitled to remain in possession until 31 December 2024, retain the Property as a correspondence address until 31 January 2025, pay no damages under the undertaking in damages he had given in respect of the 13 June 2023 interlocutory injunction and subsequent undertakings and that, again, there would be no order as to costs.

As is self-evident, given the dismissal of all Andrew’s claims, all of Andrew’s offers were well beaten. Having regard to the value of the Property, even the lowest of his offers would have required the Defendants to pay him an amount in the order of £900,000. Instead, he has recovered nothing and faces substantial liabilities in respect of mesne profits as well, potentially, as further liabilities in respect of his undertaking in damages.

In these circumstances, applying familiar, well understood and long established principles of costs, it is very hard to see how, or why, a litigant who has, demonstrably, achieved very much more success in the litigation than anything offered by his opponent should not have all of his costs, or that, in these circumstances, the successful party’s failure to enter into settlement negotiations,, on the basis of what transpire, at trial, to have been wholly inadequate offers, should adversely affect that party’s recovery of his, or her, costs.

As foreshadowed, however, in paragraph 29 of this judgment, Mr Boyd submits that, faced with Andrew’s offers, the Defendants’ correct approach, in a litigation climate that emphasises settlement, should have been to treat Andrew’s offers as a basis for negotiation and that the Defendants failure so to do should result in a costs penalty. I wholly disagree. I do not consider that there is anything in the current litigation climate, or in the authorities relied upon by Mr Boyd to justify the submission that he has advanced.

In regard to Kiam, the question in that case was an entirely different question to that raised by Mr Boyd’s submission, The question in Kiam was whether an appellant who lost his appeal, having refused an offer made in the course of appeal, which bettered the outcome of the lost appeal should pay costs not on the standard basis but on the indemnity basis. The answer, on the facts of Kiam, was ‘no’. While the court could envisage a rare case where the refusal of an offer which was better than the actual result of the appeal might lead to indemnity costs, rather than standard costs, the criterion was reasonableness and, on the facts of Kiam, there had been nothing unreasonable in the appellant pursuing its appeal and nothing, therefore, to warrant the appellant paying costs other than on the standard basis.

What, of course, is noteworthy, in respect of Kiam, is that the refused offer was better the eventual outcome of the appeal, but yet did not, or even, as I read the case, get close to securing an award of indemnity costs.

In this case, Andrew’s offers, far from bettering the actual outcome achieved by the Defendants, fell very substantially short of that outcome. There was nothing remotely unreasonable in refusing his offers and, given their distance from the end result, nothing unreasonable in the Defendants in electing not to treat his offers as a basis for negotiation. This was, as I have already made clear, an entirely unfounded and flawed claim, in respect of which, even on his best, or lowest, offer, Andrew’s starting point in negotiation was a percentage of the value of the Property which would have secured him a payment in the area of £900,000. Given the merits and given the unrealistic nature of Andrew’s best offer, set against those merits, there was, in reality, no sensible basis for a negotiation.

I do not think that any of this last falls to be modified having regard to the then Chancellor’s dictum in Glencore International. There can be no quarrel with the idea that parties, in litigation, should make reasonable efforts to settle, nor, if faced with a sensible and reasonable offer of settlement, to engage with such offers. That, however, does not compel, or require, a litigant, confronted by an wholly unrealistic offer, to waste time and cost with dealing with such an offer. Such an obligation would simply be wasteful as to time and cost and, if enforced by way of a costs penalty, would run the real risk that parties would feel themselves, for fear of penalty, compelled to settle unfounded litigation, such as the present, upon unjust terms. While I can see that, in a case where a realistic and sensible offer was made and not taken up and where the eventual result transpired to be only marginally better than the offer made, following, however, the incurring all the costs of a trial, could well lead to a serious consideration as to whether the additional costs of a trial were reasonably expended and should be recoverable, no such argument exists in a case such as the present.

In the result, I have no doubt at all that the fact of Andrew’s beaten offers and the fact that, rightly, in my view, they were not seen as a sensible basis for the commencement of a negotiation should not impinge adversely upon the Defendants’ entitlement to their costs.

I am of the same view in respect of the Defendants’ dealings with Andrew in respect of ADR and mediation.

Although, as already stated in paragraph 31 of this judgment, this was not a case where the Defendants ever refused to mediate and although, as made clear by Briggs LJ, in PGF II, the fact that a party could reasonably have refused to mediate is not, in itself, an answer to an allegedly unreasonable failure to respond to a request to mediate, I remain of the view, as set out in paragraph 31, that that factor is relevant in the overall consideration of the approach adopted by the Defendants and particularly as it may relate to the question of whether, or not, any costs penalty should attach to the defendants conduct in that regard.

In this case, I have no doubt at all that it would have been wholly reasonable for the defendants to refuse to mediate. Ms Haren drew my attention to a number of situations, outlined in the ADR Handbook, where courts have determined it to be reasonable for a party not to mediate. Those situations include, at paragraphs 11.13 and 11.21 of the Handbook, the situation where parties face what they properly consider to be an unfounded claim (as Andrew’s claim was) and where, as here, they wish to contest the claim, rather than buy the claimant off. In such cases, as indicated in the ADR Handbook and, as explained in Halsey, at paragraph 18, courts, customarily are (and rightly should be) unwilling to characterise the conduct of the party who refuses mediation as unreasonable. In this case, as already stated, I would unequivocally take the same view.

In fact, however, the prospect of mediation was first raised by Naylors LLP, who acted for the Defendants in the early part of this litigation and who suggested mediation as early as August 2023. Unfortunately, that mediation never progressed. Andrew took the position that the main element of business was, or would have been, his rights in the property and given his distrust of his brothers and, as he contended, their influence on his mother, he was not prepared to enter a mediation to which they were party, notwithstanding their position as defendants in the case. Nor, when it was suggested that the Fourth Defendant (Derek), who had assisted him in his own divorce in 2018, could attend the mediation with his mother, was he prepared to accept that compromise, describing Derek as having a contempt for the law and, also, as being someone who had referred to Janice in a seriously derogatory way.

I am afraid that I consider that Andrew’s approach to the mediation and the conditions that he sought to impose in respect of the mediation was high- handed. Andrew’s three brothers were defendants in the case, against whom, in due course Andrew was seeking penal damages. Any sensible settlement had to embrace their position as well as his mother’s. It is, also, not immaterial that the relief that Andrew was claiming in the litigation would, if granted in full, or even in large part, have, as explained in paragraph 278 of the handed down judgment, seriously, adversely and unfairly affected his three brothers. In that context, they had a very real interest in the mediation, not just as it related to the trespass claim, but generally.

As materially, Janice, elderly and in ill-health (paragraph 84 of the handed down judgment), was wholly entitled to have family support in the mediation, as well as legal support particularly given that Derek and the Third Defendant (David) held Janice’s power of attorney. Any legitimate concern that Andrew may have had, concerning his brothers’ improper influence on Janice, was, or would have been, met by the fact that Janice was represented by highly competent lawyers, well aware of their duties and obligations.

In regard to Derek’s derogatory language towards his mother, the sad fact is that, as set out in paragraph 85 of the handed down judgment, all of her children had, at a bad time in her life, been guilty of ugly and derogatory language in respect of her. I have already summarised in paragraph 275 of the handed down judgment, some of Andrew’s own conduct and language in respect of his mother.

Taking all these matters together, the position, as it existed in early October 2023, was that it was Andrew who was wrongly holding out against an effective and all-embracing mediation.

The question of mediation was resurrected by Andrew in early November 2023. He remained, however, insistent that mediation should limited to himself and his mother and should not embrace the other Defendants. That remained an inappropriate approach upon Andrew’s part.

By that stage, Withers, now acting for the Defendants, had raised with Andrew certain alleged defects in his initial disclosure. In particular documents pertaining to Andrew’s divorce, his dealings with City Relay and the expenditure he had allegedly incurred in respect of the Property. Those documents were also explicitly sought ‘with the aim of helping the parties to settle the case’ (Withers’ letter of 30 October 2023).

Andrew was not prepared to give the disclosure sought. He contended that disclosure should take place pursuant to the directions to be given at the CMC. Although reiterating his desire for settlemen , he did not address, separately, the desirability of giving the disclosure sought, as an aid to settlement, notwithstanding the point being reiterated by Withers in their letters of 7 December 2023 and 16 February 2024.

By a further and separate letter of 16 February 2024, Withers repeated the Defendants’ willingness to mediate, while recording Andrew’s apparent continued unwillingness to mediate with all parties. That led to a modification of Andrew’s position (letter 22 February 2024). He would attend a mediation with his mother and brothers, provided that they only attended that part of the mediation dealing with his claim in trespass.

As appears from Ms Haren KC’s skeleton argument, prepared for the 18 March 2024 CMC, that was the position at the CMC. By that stage, also, however, the Defendants, not having received the earlier disclosure that they had sought, had decided that mediation had best follow disclosure. Their hope, given the limited concession made by Andrew, was that an acceptable basis for mediation could be found.

The case management order made at the CMC set a very tight timetable, intended to lead to a trial as early as 15 September 2024. Disclosure was to be effected by 1 July 2024 and witness statements to be exchanged by 29 July 2024.

Disclosure proved to be onerous, given both the scale of text and email documentation and the fact that the Defendants were all living in America. The Defendants required many extensions, culminating in Master McQuail’s order of 6 September 2024, requiring that disclosure be concluded by 10 September 2024 and that the Defendants pay the costs of the applications leading to that order and vacating the trial then listed for 1 October 2024 and re-listing it to 26 November 2024.

The order of 6 September 2024 was not the last word on disclosure. By a further application, dated 11 October 2024 and dealt with by Master McQuail on paper, on 5 November 2024, the Defendants sought and obtained an order that Andrew, in fulfilment of his disclosure obligations, give further disclosure in respect of his tax affairs, his income from the Monaco flat (see handed down judgment paragraphs 22, 24, 25 and 26) and his dealings with City Relay. Compliance was required by 7 November 2024.

The delays pertaining to disclosure inevitably affected and delayed the exchange of witness statements. Witness statements were finally exchanged on 14 November 2024; twelve days before the date listed for trial.

It will be apparent from the foregoing that the delays in respect of disclosure, on both sides, left no sensible space for a post-disclosure mediation.

Such a mediation had been proposed by Andrew, as recorded in his email of 20 June 2024, without further addressing the issue of the attendees at mediation. The matter, however, was not raised again until 16 September 2024, at which stage the parties, as already set out, were still dealing with disclosure and witness statements, with a trial only some ten weeks away, and, finally, by Andrew by an email of 23 September 2024, setting out possible mediation dates in October and November 2024.

Recognising what she termed the ‘time pressure’ on the parties, Master McQuail, in a directions order, dated 23 September 2024, following the vacation of the initial trial date and following, as I understand it, receipt of representations concerning ADR and mediation, made the common form direction that ‘at all stages the parties must consider settling the litigation by means of Alternative Dispute Resolution (including round table meetings and mediation)’. Her reasoning was that any more detailed directions would not have been cost or time efficient.

In the event, no mediation took place.

On 25 October 2024, Andrew made his final Calderbank offer, as set out in paragraph 67 of this judgment. He did so, having, as already explained, issued a committal application against his mother, in respect of the events of August 2023, on 11 October 2024.

On 22 November 2024, the Defendants made their own Calderbank offer. In that offer they highlighted the fact that, because, as they put it, of Andrew’s deficiencies in respect of disclosure, no sufficient time had been available to mediate the claim. With the qualification that it would be manifestly wrong and unfair to place all the blame for delays in disclosure upon Andrew, I would accept, as I think did Master McQuail, that, realistically, the ‘space’ in the timetable, following disclosure was, given the immediately forthcoming trial, inadequate for the proper preparation and conduct of a mediation.

The offer letter explained that the basis and reason for the offer was the deterioration in Janice’s health and the desirability of her avoiding the strains incumbent in a trial. On that footing and to that end, the Defendants offered a settlement whereby each party paid their own costs of the litigation and Andrew would vacate the Property by 31 December 2024, paying mesne profits of circa £143,000, reducing, pro rata, if Andrew left the Property prior to 31 December 2024, and paying also the net rents that Andrew had received from City Relay since May 2020, being a sum not les £74,179.00. Andrew was not to remove any fixtures, fittings, or chattels, other than his own, from the Property and leave it in ths same condition as it had been when Savills had carried out a marketing assessment. In regard to Andrew’s potential costs liability should settlement not be reached, Withers, for the Defendants estimated that their costs could reach 20% of the value of the Property (i.e. in excess of £750,000). The offer, of course, was not accepted.

The 22 November 2024 offer had not been the first settlement offer. In April 2023, well before these proceedings commenced, Janice had offered to allow Andrew to stay at the property after the expiry of notice to quit and until an exchange of contracts on the Property had been negotiated. He would be reimbursed his moving costs and would have no costs liability. Similarly and as already set out, in May 2023, again before these proceedings commenced, Janice had offered to pay Andrew, as well as each of her other children, £200,000 from the proceeds of the Property, Andrew co-operating in the sale.

It is readily apparent, from all of the foregoing, that to characterise the Defendants’ conduct, in this case, in respect of their approach to mediation, as being simply unresponsive, would be inaccurate and over simplistic.

It was the Defendants who initiated the idea of mediation, in a case where, having regard to the merits they would have had good reason not to do so. It was Andrew who, by making, as I find (paragraphs 80 to 83 of this judgment), unreasonable requirements as to those entitled to participate in the mediation, who precluded the parties from moving towards mediation in the early part of this litigation. The position, in respect of an effective mediation, was also not assisted by Andrew’s failure, despite Withers’ repeated requests to give any measure of early disclosure such as might have enabled the parties to conduct a meaningful mediation.

It was only in February 2024 (paragraph 87 of this judgment), that Andrew was prepared to modify, at all, the conditions under which he would join a mediation. I am far from satisfied, for the reasons set out in paragraphs 80 to 83 of this judgment, that that concession was, or would have been, sufficient. What is clear, however, is that the Defendants were, as at the date of the CMC, in March 2024, prepared to consider mediation after disclosure, in the hope that an acceptable basis for the mediation could be found. That was a wholly reasonable stance and, as regards the conduct of a mediation after disclosure, not one with which Andrew disagreed.

In the event, time and circumstances overtook the parties and by the time that disclosure had concluded, or was close to conclusion, the ‘space’ for a mediation no longer existed. Reflecting that fact, both Andrew and the Defendants, in recognition of Master McQuail’s direction that they ‘must’ consider ADR, chose, as an available form of ADR, within the limited time frame between the Master’s direction and the date fixed for trial, to make the respective Calderbank offers set out and discussed in this judgment.

Standing back from all the circumstances that I have last set out, I can see nothing in the Defendants’ approach to mediation such as to warrant a determination that they acted unreasonably, or should be penalised in costs.

This case is very far away from the situation of silent non-engagement, discussed by Briggs LJ, in PGF II. Far from failing to engage with mediation, the Defendants chose, in circumstances where they could readily and properly eschewed mediation, to contemplate mediation and to continue to do so notwithstanding unreasonable objections raised by Andrew. They did so, further, in circumstances where, having regard to the wholly unrealistic and unfounded demands made by Andrew in respect of settlement, they could have been forgiven for regarding the prospects of a successful mediation as being slight to non-existent. There is no reason at all to believe that, had time been available, following disclosure, they would not have proceeded to mediate, even if there is every reason to believe that that mediation would have been ineffectual.

In the result, I am entirely satisfied that no ground exists to modify, or adjust the basis, or incidence, of costs, as set out and determined in paragraph 65 of this judgment and I will, accordingly, make an order that, subject as appears in the next paragraph, Andrwe should pay all the costs of this litigation on the indemnity basis.

Although Andrew has been unsuccessful in his challenges to the incidence and basis of costs, I do not think that his conduct of the post-judgment aspects of these proceedings has been unreasonable or should warrant an order for indemnity costs. The post-judgment costs will be paid by Andrew but only on the standard basis.