Kevin Cooper & Ors v Ludgate House Limited

Mr Justice Fancourt :

1. I handed down judgment on this claim as long ago as 8 July 2025 (neutral citation number: [2025] EWHC 1724 (Ch) ). I found in favour of the Claimants but refused, on a discretionary basis, to grant injunctive relief. I awarded instead damages in lieu, on a negotiating damages basis, assessed at £350,000 for Mr Cooper and £500,000 for Mr and Mrs Powell.

2. I adjourned the hearing at which judgment was handed down to allow the parties to consider their positions on all consequential matters and agree what could be agreed.

3. In the event, everything was agreed except for costs, upon which I heard submissions on 25 February 2026.

4. The effect of agreement on interest was that judgment was entered for Mr Cooper for £397,484.64 and for Mr and Mrs Powell in the sum of £567,835.21.

5. There are two principal questions on costs that are in issue. First, who is the successful party for the purposes of CPR rule 44.2? Second, the impact of intended Part 36 offers made by the Defendant to Mr Cooper and Mr and Mrs Powell separately on 18 November 2024 (“the November 2024 offers”).

6. The Claimants claimed that (1) they enjoyed rights to light appurtenant to their flats over the Defendant’s development site; (2) the construction of Arbor by the Defendant infringed those rights to light; (3) they should be granted mandatory injunctive relief requiring the Defendant to cut back Arbor to restore their light; and (4) alternatively, they should be awarded damages in lieu of injunctive relief. Although there were several sub-issues on a number of these different parts of the claims, some substantial issues in their own right, those four were the main elements of the claim.

7. The existence of the rights to light was not admitted by the Defendant until the start of the trial, though it had previously dropped its positive case that the enjoyment of light was consensual. The Claimants proved infringement of their light, which was vigorously and expansively contested at trial. The Claimants failed to obtain an injunction, on a discretionary basis only. They succeeded in obtaining substantial damages, though significantly less than the damages of in excess of £3 million each that they asked for.

8. Prior to the issue of the claims, the Defendant was offering the Claimants a conventional “book value” assessment of the light that might be lost by the construction of Arbor, in order to buy off their potential claims. This amounted to £23,000 in the case of Mr Cooper and £36,000 in the case of the Powells.

9. Comparing the position after judgment with the position before the claims were issued, the Claimants therefore succeeded on two primary elements of their claims, to establish the Defendant’s liability and entitlement to more substantial sums by way of damages, but failed to obtain the relief that they primarily sought. Given those facts and the size of the awards of damages, with the Defendant ending up writing two large cheques, one might have thought that it would not be disputed that the Claimants were the successful parties. However, it has been fully contested.

10. The Defendant argues that the Claimants brought their claims not to be awarded damages but to seek to preserve their light, making clear in their evidence (which I accepted) that they were not trying to ransom the development but were seeking to preserve the good light that their flats enjoyed. I recorded in my judgment at [302] that Mr Cooper and Mr Powell both stressed that they did not want money. I made a finding that they were genuinely concerned to preserve their light, but that they knew that if they were refused an injunction on a discretionary basis, they would be awarded damages instead.

11. The Defendant therefore argues that the Claimants failed to achieve what they set out to achieve, and so it is the successful party. Apart from the impact of the November 2024 offers, that is a difficult argument to accept, given that the Defendant fought the trial denying liability. The Claimants did not reach the stage of what relief they should be granted until they proved an actionable nuisance. The reality was that the Claimants incurred costs in preparing to prove their rights of light and, most significantly, to prove infringement by the erection of Arbor. The infringement issue is where a very significant proportion of the trial preparation and trial costs will have been spent: it occupied much of the time at trial.

12. The question of who is the successful party has regard to real life consequences, not technicalities. It is a reference to who is the successful party in the litigation, not on any particular issue: Kastor Navigation Co Ltd v AXA Global Risk (UK) Ltd [2004] EWCA Civ 277 at [143], per Rix LJ. If, putting to one side for the present the November 2024 offers, I ask myself the questions that Sir Thomas Bingham MR posed in Roache v News Group Newspapers Ltd [1998] EMLR 161 at 168-9: “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?”, then the answers are: to the first question, “yes, they have” because the damages awarded are clearly of substantial value, and to the second question, “the Defendant denied the Claimants their first prize, but not the second prize.” I recognise that Roache was a pre-CPR case, but the questions are nevertheless pertinent, as long as the answers are evaluated within the context of CPR rule 44.2.

13. In those circumstances, apart from the November 2024 offers, I conclude that the Claimants were the successful parties but that they were not wholly successful on their claims. The issue on which they lost was an issue of importance, and one of particular importance for the Defendant, given the potentially huge cost of having to cut back Arbor to reinstate sufficient of the obstructed light. This is therefore not a case where some issues have been incidentally lost along the road to judgment which do not impact the overall order for costs. This is a case where the obvious order is that the Claimants be awarded a proportion of their costs, taking into account the Defendant’s success on an important issue, and where the costs were expended.

14. However, the Defendant argues that the November 2024 offers make a significant difference to that analysis. In short, having previously offered Mr Cooper and Mr and Mrs Powell £350,000 each, the offer was increased to £500,000 each. It is necessary to address what the money sums were offered for.

15. Each offer is contained in a letter dated 18 November 2024, which annexes a memorandum of agreement and a deed of release of rights of light and air relating to the relevant Claimant’s flat. The Defendant offered £500,000 on completion of the deed of release, in relation to the whole of the claim and in full and final settlement.

16. It is the content of the deed of release that is material. This states that it requires the prior consent of the Claimant’s mortgagee. It purports to release and extinguish rights of light and air enjoyed by the flat over not just the land owned by the Defendant but the adjoining land owned by Sampson House Ltd, an associated company of the Defendant. That release is limited to the extent necessary to prevent the Claimant from alleging further infringement by what is called “Permitted Development”. This is the building of further towers within the Bankside Yards development within a defined profile, plus a small tolerance, as shown on plans to be annexed to the draft deed.

17. In order to prevent any new rights accruing over time, the draft deed includes an agreement that any light or air enjoyed thereafter to the extent of the defined profile of development are enjoyed by consent. Under the draft deed, the Claimant was also to release any “Claim”, which is defined as including any claim for compensation or costs for interference with light or air attributable to Permitted Development. That release therefore includes the future claim for statutory compensation that the Claimant would have, upon further development on Bankside Yards, pursuant to s.204 of the Housing and Planning Act 2016 (“a section 204 claim”).

18. The offer to settle the claim for infringement of the Claimant’s rights by the construction of Arbor therefore requires the Claimant to agree to give up part of his property rights and, in effect, a future claim for statutory compensation that was expected to arise at an uncertain date in the not too distant future.

19. The £500,000 was therefore offered not just in settlement of the pleaded claims for an injunction or damages but also for the release of property rights and giving up a future section 204 claim.

20. The Defendant contends that, from the time of the November 2024 offers onwards, the Claimants did not continue to fight their claims in order to prove their rights or establish an actionable infringement, or to recover damages of the order of what I subsequently decided to be appropriate negotiating damages. They only continued their claims in order to obtain an injunction rather than damages, which they failed to obtain, or to seek to extract or be awarded a much higher level of damages, namely the more than £3 million each that they contended for at trial.

21. On that basis, the Defendant submits that I should determine that, overall, the Defendant was the successful party, even if not wholly successful, or alternatively that I should decide that from November 2024 the Defendant was the successful party, and so make an order for costs consistently with the general rule in their favour from the time of expiry of the November 2024 offers.

22. I am not persuaded that I should assess there to be two different successful parties for the purpose of rule 44.2, before and after the November 2024 offer. This is not a case in which there were two different stages to the determination of the claim, or where only costs after a particular time are in issue, where such an approach might be justified. The potential inadequacy of a single overall assessment of who was the successful party is tempered by the ability of the court to make a different order, under CPR rules 44.2(2)(b), (4), (5), which includes taking account of the significance of offers made. The general rule is only a starting point for an assessment of the appropriate order for costs.

23. In Mr and Mrs Powell’s case, they comfortably beat the November 2024 offer, even allowing for an interest adjustment back to December 2024 and leaving out of account that the money was offered to them in return for more than just the value of their existing claim. On this basis, the offer made carries no great weight in the assessment of costs, though I can take it into account as being a reasonable attempt on the part of the Defendant to attempt to resolve the claim and the future liability of its associated company to the Powells. What is significant is that the Powells did not succeed in preserving their light and so did not succeed on the whole of their claim.

24. The costs associated with contesting that issue (which included the planning expert evidence) must, though substantial, have been significantly less than the costs of the infringement issue (which included the rights to light surveyor expert evidence), on which the Claimants succeeded.

25. In the circumstances, I consider that Mr and Mrs Powell should be awarded two-thirds of their costs of their claim, to reflect the fact that the Defendant won the very important injunction issue and that the Powells comfortably beat the offers that were made to them.

26. In Mr Cooper’s case, the position is more complicated. He was offered £500,000 for his claim and to release his rights to light, and with them any future section 204 claim, as explained above. Mr Cooper was awarded £350,000 in damages, which, with interest to 21 days after the date of the offer, amounts to £385,105.67. He therefore failed to beat the November 2024 offer unless his rights to light (including the value of the future compensation claim) which he retains were worth about £115,000.

27. Given that the value of Mr Cooper’s rights (including his right to be paid compensation under section 204 in future) has not been determined, it is in my view impossible to conclude now that Mr Cooper failed to beat the offer. Mr Lees invited me to proceed by extrapolation from the valuation evidence given at trial, and conclude that the section 204 compensation could not have been worth more than about £10,000. That argument was advanced on the basis that the Claimants’ own expert evidence (which I did not find persuasive for various reasons) resulted in a difference in value figure of £155,000 for the relevant comparison for that purpose, with the difference in value figure for the comparison that was relevant to the trial being said to be £309,000. Since I had concluded that the correct assessment of the latter difference in value was £20,000, I could be confident that the correct assessment of the former would be around £10,000, Mr Lees submitted.

28. However, there is no mathematical connection between the two different assessments that would enable me to take that simplified approach. Relevantly, I did not find that Mr Cook, the Claimants’ valuation expert, had consistently exaggerated his values, but rather that there was apparent inconsistency in his figures, and that his methodology was suspect.

29. The difference between the light currently available to Mr Cooper’s flat, with Arbor in place and Sampson House notionally still present, and the light that will be available after erection of the further Bankside Yard buildings in place of Sampson House, is likely to be substantial. That is the difference that will form the basis of the section 204 claim. The relevant comparison for the purpose of determining the diminution in value at trial was between (i) the light with the Bankside Yards development notionally completed and Arbor cut back and (ii) the light with the Bankside Yards development notionally completed and Arbor as it stands. This was a smaller difference, on any view. It cannot therefore safely be concluded that the future compensation will be less than the £20,000 that I determined at trial. I do not feel able confidently to estimate what it is likely to be. The difficulty of assessing the values at the date when compensation is payable is illustrated by the fact that the Defendant’s valuer considered that Mr Cooper’s flat would be more valuable by about £100,000 following the completion of Bankside Yards, not less valuable on account of further interference with the light that it enjoys. I did not have to make any finding about that.

30. I therefore consider that Mr Calland is right to say that the Court should not speculate at this stage about the value of Mr Cooper’s rights to light and section 204 claim. I cannot assume that these rights and the compensation are worth less than £115,000, even though they might well be. I cannot therefore conclude that the Defendant has beaten the offer that it made to Mr Cooper.

31. Nevertheless, the offer of £500,000 was on any view a reasonable offer to make, as a proposal to settle with Mr Cooper on a basis that removed any future dispute. Mr Cooper might reasonably have been expected to engage with it, unless he was solely concerned to preserve his good light. Mr Cooper was uninterested in the November 2024 offer but made a counter-offer in January 2025, at £7 million. This also was expressed to include the future statutory compensation. I can infer from this, as Mr Lees submitted, that Mr Cooper was not interested in settlement negotiations at anything like the amount of the Defendant’s offer, but it was not the case that he was uninterested in money. He was willing to give up his light but only for what was in effect a ransom value.

32. Mr Calland submitted that £7 million was simply the figure at which Mr Cooper “felt comfortable” in losing his light, but in truth it was an unjustified sum that he was seeking to extract from the Defendant while the risk of an injunction remained. I consider that this was an unreasonable stance for Mr Cooper to take, as the price named was so far beyond any sum that was reasonable. I can conclude in his case that the offer by the Defendant of £50,000 to £100,000 more, if that was what was needed to beat the judgment, would have made no difference to Mr Cooper.

33. In those circumstances, I consider that the proportion of Mr Cooper’s costs recoverable from the Defendant should be reduced to one-third, because in effect Mr Cooper obtained nothing more of any importance to him than he would have obtained by accepting the November 2024 offer, whether that was more or less valuable than what he left with by the date of judgment. Mr Cooper was fighting the case by November 2024 to obtain very substantially more than was offered and he failed to obtain it. The offer of settlement

34. The next question is whether, in Mr Cooper’s case, the appropriate order for costs must be different as a result of the Defendant’s November 2024 offer being a valid Part 36 offer and Mr Cooper having failed to obtain a judgment more advantageous than that offer.

35. The Defendant’s argument here faces the same obstacle that I have already addressed, namely that it cannot establish at this stage that Mr Cooper’s rights of light and entitlement to statutory compensation at a later date are worth less than £115,000. The burden under CPR rule 36.17 lies on the party seeking to rely on an unaccepted Part 36 offer after trial to prove both that it was a valid Part 36 offer and that the circumstances specified in rule 36.17(1) have arisen. For reasons that I have already given, the Defendant has not discharged the burden of showing that Mr Cooper failed to obtain a more advantageous judgment than the offer.

36. That is sufficient to dispose of the issue, but Mr Cooper also argued that the November 2024 offer was not a valid Part 36 offer at all, by reason of the consideration stipulated for being not only the pleaded claim for an injunction and damages but also the rights to light of Mr Cooper (to the extent of Permitted Development) and with them any future claim for compensation. Such an offer, it was submitted, was not an offer to settle relating to the whole of the claim but an offer to settle relating to the whole of the claim and other matters, which were beyond the matters in issue in the claim. Accordingly, it could not correctly be stated, as rule 36.5(1)(d) requires, that the offer “relates to the whole of the claim”, and therefore the offer was not made in accordance with rule 36.5 and so does not have the consequences stated in Section I of Part 36.

37. In case the matter goes further, I will deal with this question too.

38. The fact that, in order to perform the comparison required by rule 36.17 between the value of what was offered and that which was obtained by the judgment, I would have to address the value of matters whose value was not in issue in the claim, and which was therefore not decided in the judgment, suggested to me that there must be a doubt about whether the November 2024 offer was a valid Part 36 offer. It seemed surprising if, in order to decide the question of costs liability following judgment, the court had to embark on the valuation of matters that were completely extraneous to the issues in the claim on which judgment had been given, in order to see whether a claimant obtained by judgment something more than they were offered.

39. However, after taking additional time to consider the matter fully, I have come to the conclusion that the words “relates to the whole of the claim” are not to be read as meaning “relates only to the whole of the claim and nothing more” or as imposing a limit on the content of the offer, for the following reasons.

40. The relevant parts of Part 36 are the following. Rule 36.2(2) provides: “Nothing in this Section prevents a party making an offer to settle in whatever way that party chooses, but if the offer is not made in accordance with rule 36.5, it will not have the consequences specified in this Section” This in my view is to make clear that (1) a party can offer to settle a case in any way that they like outside the confines of Part 36, but (2) only an offer that complies with rule 36.5 has effect as a Part 36 offer. Rule 36.5 therefore describes the mandatory requirements of a Part 36 offer.

41. Rule 36.2(3) provides: “A Part 36 offer may be made in respect of the whole, or part of, or any issue that arises in— (a) a claim, counterclaim or other additional claim; or (b) an appeal or cross-appeal from a decision made at a trial.” This describes the different kinds of Part 36 offer that may be made, namely an offer in relation to the whole of a claim, a part of that claim, or even an issue in the claim, and similarly for any counterclaim, additional claim, appeal or cross-appeal separately.

42. Rule 36.5(1) provides: “A Part 36 offer must— (a) be in writing; (b) make clear that it is made pursuant to Part 36; (c) specify a period of not less than 21 days within which the defendant will be liable for the claimant’s costs in accordance with rule 36.13 or 36.23 if the offer is accepted; (d) state whether it relates to the whole of the claim or to part of it or to an issue that arises in it and if so to which part or issue; and (e) state whether it takes into account any counterclaim.” These are the mandatory provisions and are the only ones that apply under rule 36.5, save in relation to a personal injury claim. Paragraph (d) concerns what an offer must state, so that the scope and potential effect of the offer is understood by the offeree.

43. Rule 36.13 makes provision for costs where a Part 36 claim is accepted, and includes different provisions depending on whether the offer related to the whole of the claim, or a part, or an issue. Rule 36.14 provides that if a Part 36 offer is accepted, the claim is stayed on the terms of the offer, or where the offer relates to part only of a claim, the claim is stayed in relation to that part on the terms of the offer.

44. Rule 36.17 includes the following: (1) Subject to rule 36.24, this rule applies where upon judgment being entered— (a) a claimant fails to obtain a judgment more advantageous than a defendant’s Part 36 offer; or (b) judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant’s Part 36 offer. (2) For the purposes of paragraph (1), in relation to any money claim or money element of a claim, “more advantageous” means better in money terms by any amount, however small, and “at least as advantageous” shall be construed accordingly. Rule 36.17 goes on to specify the consequences in each of the cases (a) and (b) in rule 36.17(1), which the court will order to apply “unless the court considers it unjust to do so”.

45. In Hertel v Saunders [2018] 1 WLR 5852 , Coulson LJ said at [33]: “…I would construe the words ‘claim’, ‘part of a claim’ and ‘issue’ as referring to pleaded claims, parts of claims or issues, and not other claims or issues that may have been intimated in some way but never pleaded. Once proceedings have started, the certainty required for Part 36 to operate can only be achieved by this interpretation.”

46. In that case, an offer to settle only a claim that was intended to be introduced by amendment was held not to be a Part 36 offer. This means that an offer must be made to settle the pleaded claim (or part of it).

47. In Calonne Construction Ltd v Dawnus Southern Ltd [2019] 1 WLR 4793 , the Court of Appeal held (following its earlier decision in AF v BG [2010] 2 Costs LR 164) that the reference (now in rule 36.5(1)(e)) to taking into account a counterclaim included a counterclaim that had not yet been issued. That was because a counterclaim is a “claim” within the meaning of Part 36 and an offer to settle can be made in respect of a claim that has not yet been issued.

48. Rule 36.5(1)(e) makes clear that, in making an offer to settle, an offeror may take into account any counterclaim, even though that is strictly a separate claim in respect of which a separate Part 36 offer to settle could be made. The value of a counterclaim is therefore something that can be taken into account in making an offer under Part 36 in relation to a claim. In such a case, the offer would have to state that it relates to the whole or part of the claim and that it takes into account a counterclaim. There is no decision, so far as I am aware, on whether a Part 36 offer can state that it relates to the whole of the claim and another claim, or possible claim, other than a counterclaim.

49. In Coldunell Ltd v Hotel Management International Ltd [2022] Costs LR 1873 , a Deputy High Court Judge held that a pre-existing order for costs in a previous claim (which costs had not yet been assessed) could be taken into account in an offer to settle a claim because it gave rise to a defence of set-off (which had been pleaded), and therefore was an issue that arose in claim 1. The Deputy Judge also said, obiter , that there was nothing that expressly precludes the inclusion of terms in an offer to settle under Part 36, and that it was therefore open to the claimant to include such a term in its offer as long as it complied with rule 36.5 (by stating that the offer related to the whole of the claim).

50. That obiter observation was based on dicta of Asplin LJ in the Calonne Construction case, addressing a specific question of whether including in an offer a rate of interest that would apply following the expiry of the relevant period meant that the offer was not a Part 36 offer, because it included something for which Part 36 then made no express provision. Unsurprisingly, Asplin LJ held that it did not, and cited the terms of rule 36.2(2), which preserves the ability to make an offer in whatever way the party chooses. She stated: “Secondly, there is nothing that expressly precludes the inclusion of terms in addition to the requirements in CPR r 36.5(1) and CPR r 36.2(2) expressly preserves the ability to make an offer to settle in whatever way the party chooses, albeit that it provides that if CPR r 36.5 is not complied with the offer will not have the costs consequences set out in that Section.”

51. The decision on interest in Calonne Construction is now enshrined in rule 36.5(5), which removes any doubt about it.

52. The final decision to which it is necessary to refer is that of Hildyard J in Grant v FR Acquisitions Corporation (Europe) Ltd [2022] EWHC 3366 (Ch) . In that case, Hildyard J had to address an argument that the term of an offer stipulating for payment of a sum of money within 14 days meant that the offer included relief that did not “relate to” the claim within the meaning of rule 36.5. It was argued that if the claimants had succeeded in the litigation they could not have received the money before certain other contingencies had been satisfied. Hildyard J rejected that argument. He said: “I have concluded that … the test (in CPR 36.5) that the offer must “ relate ” to the claim/part/issue is less exacting and does not require the exact correlation suggested… it means simply that the offer must be made by reference to identified claims and offer proposals in respect of it/them” [21] “… in my judgment, the fact that in this case the Administrators’ Offer included a term for accelerated payment of a debt not yet due, which acceleration could never have been part of or obtained by the claim (or prospective claim) but for which a discount for early payment was offered, did not prevent it being complaint with CPR 36.5”. [30]

53. Mr Lees submitted that the fact that the Defendant offered to settle for £500,000 not just the whole of the existing claim but included terms about the property rights that would give Mr Cooper a claim in future to an uncertain amount of statutory compensation, does not mean that it was not an offer to settle that relates to the whole of the claim. The offer stated that it was in relation to the whole of the claim, and set out the terms on which the offer was made. He submitted that this was an offer to settle the whole of the claim on terms, and that acquisition of Mr Cooper’s property rights was a term that the Defendant was entitled to offer, which does not take it outside Part 36.

54. Mr Lees relies on the words of rule 36.2(2) and Asplin LJ’s reference to them, the obiter view of the Deputy Judge in the Coldunell case, and the conclusion of Hildyard J that offering something that the claimant could not obtain by pursuing the claim to be settled does not mean that the offer is not an offer in respect of the whole of the claim.

55. In so far as the offer made involves the release of rights of light in relation to Permitted Development, which could not have been an outcome of the claim even if Mr Cooper had lost, Mr Lees makes the same point, namely that these are the terms of an offer to settle the whole of the claim.

56. Mr Calland submitted that an offer to settle that in substance was an offer to settle the claim and another future claim, or an offer to settle the claim on terms that involved other property rights in addition to the claim, was not “an offer that relates to the whole of the claim” because it relates to the whole of the claim and something else, namely the future claim or the property rights.

57. In my judgment, Mr Lees is correct. The requirement in rule 36.5(1)(d) that the offer state whether it relates to the whole of the claim, a part of the claim or an issue in it, means just that. It is a requirement for one of those descriptions to appear on the face of the offer, and for any part or issue to be identified. The reason is that the consequences that follow from a valid Part 36 offer, whether accepted or not accepted, depend on which of those offers it is: see [41] above. The offeree needs to know which it is.

58. If the offeror states in its offer that it is an offer in relation to a part of a claim, identifying the part, then it is such an offer, subject to complying with the other mandatory requirements of rule 36.15; if the offeree accepts it, the offeror cannot argue that it is not an offer in relation to a part of a claim only. Similarly, if the offer is expressed to be in relation to the whole of the claim, acceptance of it stays the whole claim; if the offer is not accepted, the offeree cannot contend that it was not an offer to settle in respect of the whole claim, if it was in all other respects a valid Part 36 offer.

59. The particular terms on which an offer to settle is made do not determine, for the purpose of Part 36, whether it is an offer in relation to the whole claim or a part of a claim or only an issue in the claim. Nor does what is offered have to correlate to what is claimed. If whatever is offered is stated to be an offer in relation to the whole claim, then it is such an offer. Although an offer will usually comprise some part of what is claimed, there is no requirement for exact correlation, nor are terms that go beyond the exact basis on which the claim is pleaded disallowed: see Calonne Construction , per Asplin LJ.

60. The safeguard for the offeree, if one is needed, against unusual or burdensome terms being offered, particularly terms that bring in extraneous matters, is that it is the offeror who will have to prove that the offeree has failed to obtain a more advantageous judgment, or that the offeror has obtained a judgment that is at least as advantageous, as the case may be. As my decision in this case illustrates, that will not be a straightforward matter if other rights and claims extraneous to the claim that is to be settled are brought into the terms of the offer.

61. Even if the offeror is able to prove that the relevant comparison is in its favour, if the terms of the offer made it one that the offeree was not reasonably able to evaluate within 21 days of the offer, on account of the unusual terms included, the court can disapply the standard consequences of non-acceptance specified in rule 36.17 if it considers it unjust that they should follow. Rule 36.17(5) expressly requires the court, when considering whether to disapply those consequences, to consider the terms on which the offer was made, the information that was available to the offeree at the time of the offer, any refusal by the offeror to give information that would enable the offer to be evaluated, and whether the offer was a genuine attempt to settle the proceedings.

62. It is, in short, unnecessary to impose an additional constraint on the terms which a Part 36 offer may contain, and difficult to do so by identifying from the language of Part 36 a clear line between terms that are permitted and those that are not. I respectfully agree with the words used by Hildyard J in [21] of his judgment in the Grant v FR Acquisitions case, set out at [52] above. The words “it relates to” have no greater significance as regards the terms of the offer.

63. I therefore conclude that the November 2024 offer to Mr Cooper was a valid Part 36 offer, but, for the reasons that I have given, the Defendant has not proved that Mr Cooper has failed to achieve a more advantageous outcome by the terms of the judgment and so the consequences specified in rule 36.17(3) do not apply.