Part 36 offers involving estate assets not yet in the offeror’s possession can be valid and attract full consequences, though courts may reduce enhanced interest where offers are made shortly before trial. Refusing mediation is reasonable where opponents withhold essential disclosure.
- A failure to issue a pre-action letter of claim may not attract a costs sanction where the claimant’s action was a reasonable response to the defendant’s prolonged failure to articulate its case, and where the court is satisfied the omission made no difference to the litigation’s trajectory.
- Silence in the face of an invitation to mediate is not automatically unreasonable; it may be justified where a party reasonably awaits the disclosure of material evidence held by the other party, who has previously refused requests for early disclosure.
- The probate exception for costs from the estate, where the testator’s conduct caused the litigation, does not extend to a testator merely misleading others or inspiring false hopes; it is confined to conduct creating confusion or uncertainty in the testamentary documents themselves.
- The end of a reasonable investigation into a will’s validity is fact-specific and may be deemed over once a party has, or could with diligence have obtained, the essential material to assess the merits of its challenge, with further action constituting hostile litigation.
- Where a valid Part 36 offer is beaten, the court may adjust the consequences, such as the rate of interest on costs, to reflect the stage at which the offer was made and prevent an unjust result.
