Adam Clive Scott v The Estate of Richard Norman Scott & Ors (Consequential matters)

MR JUSTICE RICHARDS:

1. This is a settled transcript of my oral judgment on various consequential matters arising from my judgment of 29 October 2025 following trial (the Judgment ). Throughout I use defined terms set out in the Judgment unless a contrary intention is indicated.

2. This settled transcript does not, however, deal with my ruling on costs of the application under s117 of the Senior Courts Act 1981 referred to at [5(ii)] of the Judgment. I was not asked to settle a transcript of my ruling on that issue. PART A – SELF-CONTAINED ISSUES UNCONNECTED WITH COSTS OF THE TRIAL Adam’s claim for injunctive relief

3. Adam made a claim for injunctive relief that no party sought to have determined at trial (see [5(i)] of the Judgment). While Jennifer, Gordon and William gave some undertakings, those were time-limited and have now expired. The parties are agreed that, if he so wishes, Adam can restore his application for injunctive relief.

4. Adam may apply to restore that claim within 6 months. i) If he does so, there will need to be a further hearing at which factual and other findings are made. The costs of the claim will be determined at or following that further hearing. ii) If Adam makes no such application, his claim for injunctive relief will be struck out and the like consequences will ensue for costs purposes as if the claim had been discontinued. Adam’s application for committal

5. In the course of the litigation, Adam asserted that Jennifer, Gordon and William had breached the terms of an interim injunction. He applied to commit them for contempt but ultimately did not pursue that application. I prefer Mr Troup KC’s position on the costs of that application. I do not accept that the costs should be simply wrapped up in the determination of the costs of Adam’s claim for final injunctive relief that I have just considered. The application to commit for asserted breach of interim injunctions was a self-contained matter that stood separate from his claim for final injunctive relief. I agree with Mr Troup KC’s submission that, given the committal application was not pursued, Adam should pay the costs of Jennifer, Gordon and William associated with that application. Costs of interlocutory matters that were reserved to the trial judge The specific disclosure application

6. Ultimately the parties agreed that the proper order was costs in the case, and that is the order I will make. The privilege application

7. Adam was asserting privilege in relation to documents associated with the acquisition of the Verlux Land. An application was made to determine whether that privilege could properly be asserted. No judicial determination of that application was ever made, and ultimately the matter was simply conceded on 2 July 2025 with Adam providing the documents after some protracted discussions between solicitors. Jennifer’s position is that she should have her costs of that application. Adam’s position is that I should order costs in the case.

8. I prefer Adam’s position. The privilege application was never determined by a judge. I regard the costs incurred in connection with that “application” as, in effect, representing an ongoing debate between solicitors about the availability of privilege that was ultimately resolved by Adam providing the material. It was a debate about the proper parameters of privilege and, effectively, an overhead cost of the proceedings. Costs in the case is the appropriate order. PART B – COSTS OF THE TRIAL ITSELF The general rule and the court’s discretion

9. The general rule is set out in CPR 44.2(2)(a): the unsuccessful party is usually ordered to pay the costs of the successful party. The logical place to start is by determining who was the successful party at trial. In my judgment, Jennifer was quite clearly the successful party.

10. I agree with Mr Troup KC that the meat of the debate between the parties at trial was in the proprietary estoppel and probate claims. Adam sought proprietary rights over the farm by the Proprietary Estoppel Claim, but did not succeed in establishing those rights. He wanted to declare invalid the Disputed Wills, but I found that those wills were valid. Approaching matters, as I should, as a question of real life and common sense, in my judgment, Jennifer is the successful party.

11. However, the court has a discretion to depart from the general rule (see CPR 44.2(2)(b)). In deciding whether to do so, and, more generally, what costs order to make, I must take into account all the circumstances including, but not limited to, the matters set out in CPR 44.2(4). The debate between the parties in that regard focused on the effect of admissible offers to settle (not falling within Part 36 of CPR) that Adam made (see CPR 44.2(2)(c)), some criticisms that Adam has made of Jennifer’s conduct of the litigation (see CPR 44.2(a)) and Adam’s argument that a reduction should be made to Jennifer’s costs award to reflect the fact that she did not succeed on all of her case (CPR 44.2(b)).

12. I also need to determine whether any costs award should be on the indemnity or standard basis. Admissible offers to settle The approach I will take

13. I start with the consequences of Adam’s admissible offers to settle since they go to the heart of the incidence of costs: Adam’s position is not only that these should excuse him from paying costs to Jennifer, but I should order that Jennifer pays his costs.

14. I take the following matters of approach to be at least broadly common ground: i) Adam has made admissible offers to settle. They were expressed to be without prejudice save as to costs, and therefore I must have regard to them when making my costs order. ii) CPR, however, is not prescriptive as to precisely what regard I must have. iii) The parties agree that, if an offeree has achieved significantly more at trial than was offered by way of Calderbank offer, then the Calderbank offer is unlikely to be of that much relevance. iv) “Having regard to” Adam’s Calderbank offers will involve me looking at the terms of those offers and considering how capable they were of acceptance when made. That is a multi-factorial and holistic enquiry: an offer may contain a promise of payment of a large sum, but if there is little assurance that the payment will be made, it might in fact be of little value.

15. Adam’s position is that a central question is whether it was unreasonable of Jennifer not to accept the Calderbank offers that he made. He derives some support from authorities such as Cutts v Head [1984] Ch 290 , for that proposition. In Cutts v Head itself, an offeror was awarded costs from the date when the offer “ought reasonably to have been accepted”. Adam suggests that this demonstrates that consideration of the reasonableness of any refusal should be at the heart of my analysis when I have regard to his Calderbank offers.

16. Jennifer prefers to approach matters from a starting point that involves considering whether Adam achieved a better result than the Calderbank offers that he made. Jennifer’s position is that the answer to that is a resounding no. Adam was seeking a proprietary interest in the Farm, and succeeded only in retaining some tenancies that he had been granted. Since the Estate retained the Farm unburdened by any proprietary interest of Adam, Jennifer says that in itself was a worse result (for Adam) than his Calderbank offer which would have resulted in him obtaining the whole Farm.

17. Adam counters that the later Calderbank offers would have given Jennifer some £12 million for the Farm, and that, following the Judgment, the Farm is indeed unencumbered by any of Adam’s interests, but the Farm is worth only £6.4 million on Rostons’ valuation. (That figure is derived from the table at [8] of the Judgment after making allowance for the value of Davenport Farm which was omitted from that table).

18. I conclude that there is no single correct way of looking at this issue. Both sides, perhaps inevitably, seek to frame the question in the way that suits them best. I consider that the reasonableness or otherwise of Jennifer decision to reject Calderbank offers is a relevant consideration since CPR 44.2 states expressly that the conduct of the parties is relevant. I will therefore consider that issue since Adam asks me to do so.

19. However, I should not be taken as determining that if Jennifer did act unreasonably in refusing a particular offer, Adam should necessarily have his costs following the date of that offer. Nor would I go so far as accepting Mr Troup KC’s submission that, in light of the outcome at trial, Jennifer could have said that the Estate would not sell the Farm “for all the tea in China” and necessarily be saved from any adverse costs consequences. The various offers and whether it was reasonable for Jennifer to reject them

20. Adam’s primary case is that Jennifer should have accepted settlement offers made from 3 December 2019 and that, having failed to do so, he should pay her costs from the date of any offer that she unreasonably refused.

21. I start with the 3 December 2019 offer that was referred to in an email of the same date from Shakespeare Martineau, Adam’s then solicitors, to Jennifer’s solicitors. That email referred to a “deal” in general terms, but there is little clarity on what that deal was. I am not able to conclude from the relatively scanty material given on the contents of that deal, that it was unreasonable for Jennifer to reject it in 2019.

22. We then move to November 2020, at which point Adam made an offer, through his solicitors, to purchase the Farm for £6 million. At that time Rostons was valuing the Farm at around £5 million. Adam says that simple arithmetic means that that was a very good deal and it was unreasonable of Jennifer to reject it.

23. However, the Farm is not a standardised widget or a financial instrument that can only be valued in money. The essence of Adam’s offer was that he would acquire land that is idiosyncratic and which Jennifer, the Estate and its beneficiaries could reasonably value not just in financial terms. Moreover, it is clear from contemporaneous discussions that both Jennifer and Adam saw more value in the Farm than Rostons did.

24. Adam seeks to skewer Jennifer on the horns of a dilemma by saying that Jennifer adopted Rostons’ valuation of £5 million for probate purposes, and so must have believed that value as otherwise she would have been bound to return a higher value for inheritance tax purposes. I do not accept that. Neither Adam nor Jennifer were expert valuers. They were quite entitled to follow Rostons’ advice on the appropriate value for inheritance tax purposes while privately holding their non-expert but shared view that there was more value in the Farm than Rostons saw. Indeed, that was the position of Richard during his lifetime. While he was alive, he referred to some much higher potential values for the Wilmslow land if it was developed, and it is reasonable to conclude that both Adam and Jennifer were influenced by his views.

25. Therefore, in discussions in November 2020 neither Adam nor Jennifer were proceeding on the basis that £5 million was necessarily the “right” value. To an extent they were vindicated in that because some three months later, in February 2021, Adam would sell part only of Giantswood for £8.75 million even without planning permission. In those circumstances, I do not consider it is right to assess the reasonableness of Jennifer’s refusal by reference only to Rostons’ valuation. Jennifer could quite reasonably consider that there was more value in the Farm than Adam was offering. It was not unreasonable of Jennifer to reject the November 2020 offer.

26. The next offer on which substantial reliance was placed was made in November 2023, by which time Adam had sold part of Giantswood. Adam’s offer was set out in a letter of 3 November 2023 from his solicitors. The offer was expressed to be made pursuant to Part 36 of CPR. However, it is common ground that it was not a Part 36-compliant offer (because Adam separately agreed to accept just £1 in respect of his costs). Adam does not invite me to give the 3 November 2023 offer any special weight on the basis that it was a “near miss” in Part 36 terms and asks me simply to assess the reasonableness of Jennifer’s rejection of this offer in the same way as in relation to other Calderbank offers.

27. By the letter of 3 November 2023, Adam offered to purchase the Farm for an initial payment of £6 million. He offered a range of options for the Estate to obtain additional value if the Wilmslow land was developed. The Estate could elect to wait and see how development proceeded. If it exercised this option, Adam would agree to use reasonable endeavours to secure a successful development and the Estate would receive an additional payment ranging from £6 million to £3 million if the development took place within 3 years. Alternatively, the Estate could have opted for fixed additional consideration of £1.75 million whether or not development took place.

28. This was certainly a better offer than the November 2020 offer. However, in my judgment, Jennifer could reasonably conclude from the Giantswood experience that even this undervalued the development potential of the land. Indeed, that is demonstrated by the fact that when Jennifer made a counter offer in December 2023, just a month or so later, that the Estate sell the Farm for a flat £12 million payable in instalments, Adam was quick to adopt that suggestion and use it as a basis for a further offer. I do not therefore consider it was unreasonable for Jennifer to reject Adam’s offer of 3 November 2023.

29. Jennifer’s counter proposal was that Adam would acquire the Farm for £12m payable in three instalments: £6m was to be paid within 6 months of an agreement to transfer of the Farm, £3m within 2 years of the agreement of the Farm and a further £3m within 10 years of agreement. Jennifer suggested that she would transfer title and give vacant possession within 28 days of Adam paying the second instalment. Overage would be payable, calculated at £50,000 for each residential unit developed on the “Land” (presumably the Wilmslow land) if any instalment was not paid.

30. By a letter from his solicitors of 22 December 2023, Adam accepted in principle the idea of fixed £12m aggregate consideration. This letter has given me real pause for thought about the reasonableness of Jennifer’s position.

31. Adam’s offer in December 2023 was clearly a serious offer and Jennifer did take it seriously. It started a protracted period of correspondence between solicitors that at points came very close to a settlement of the dispute. It is a matter of some regret that a deal was never done on those terms. Perhaps, with the benefit of hindsight, instead of writing solicitors’ letters about principles, one or other of the firms could have taken the initiative and proposed an actual settlement agreement. That would have drawn out debate on all details of the settlement. Because that discipline was not observed, even though there was some high-level agreement on principles, new points kept emerging, and that meant that some important terms were not fleshed out in sufficient detail ever to be agreed.

32. The parties’ high-level analysis of various principles in solicitors’ letters did not deal with some important matters. So, for example, at least initially there was some question as to whether, if Adam did not pay anything after the first £6 million instalment, the Estate could sue for the missing instalment and also claim overage. That was probably answered in a letter of 21 March 2024 in which Adam indicated that the Estate could recover both an unpaid instalment and the overage. However, that was symptomatic of a process that involved important issues emerging piecemeal. If the parties were negotiating an actual settlement agreement, they would at least have had a picture of the entirety of the deal that was being offered and negotiated but they never had that complete picture with the result that there were wrong turns along the way. For example, even on 31 January 2024 Adam was describing his offer as being linked to the development of the Wilmslow land when Jennifer could reasonably have approached it as an offer of a fixed sum whether that land was developed or not.

33. Jennifer did not trust Adam. That lack of trust was not unreasonable given my finding at [80] of the Judgment about Adam’s propensity and willingness to behave in “a misleading and underhand way to further his interests”. The parties’ adoption of a flawed process in their attempts to settle the dispute was scarcely conducive to building that trust.

34. On 14 March 2024 Jennifer’s solicitors referred to “a hitherto unspecified clause” on which Adam was said to be insisting newly, which would remove any right to “enforce” the terms of the settlement agreement if any instalment went unpaid. Although a letter from Adam’s solicitors of 21 March 2024 referred generally to “misconceptions”, as I have explained, there was no draft settlement agreement and so it is not clear to me what that “hitherto unspecified clause” consisted of.

35. The letter of 14 March 2024 opened a new debate that concerned “enforcement” or “enforceability” although, it is not clear to me precisely what that debate involved. That debate must have been about more than contractual enforceability because both sides were envisaging that the settlement would be set out in a (binding) contract. Perhaps it involved a question of timing. By the time of a letter of 12 April 2024 from Shakespeare Martineau, the parties were discussing a payment in three instalments of £6 million, £3 million and £3 million. Perhaps the question was whether if the second instalment of £3 million was not paid, Jennifer could sue there and then for the whole or missing balance. Neither side has been able to provide any real elucidation. Shakespeare Martineau wrote in their letter of 12 April 2024 that Jennifer’s position on “enforcement” would make the settlement “actually a £12 million overall settlement as opposed to the £6 million that has been the foundation for the negotiations throughout”. I do not understand that and consider it begged a number of questions as Jennifer could reasonably have approached Adam’s offer as proposing a deal at £12 million rather than at £6 million.

36. This uncertainty illustrates a difficulty with the Adam’s offer. Adam wanted the Estate to transfer title and give vacant possession of the Farm on receipt of the first £6 million. It was not unreasonable for Jennifer to ask how she could be confident that the Estate would receive the further £6 million plus overage if necessary. Adam’s position is that that she never asked for legal security and describes this concern as a nut and bolt that could have been sorted out in due course. However, in my judgment, the point was more fundamental than that.

37. The fact is that there was limited comfort that Adam could meet any contractual obligation to pay £12 million. Whether Jennifer described her concern in terms of “security” or “enforceability”, it was quite reasonable for her to conclude that the offer was not of a guaranteed £12 million. I do not consider that point is answered by the general assertion that Adam had lots of assets, not just the Giantswood land and the cash proceeds of sale, but also Marthall Mill and indeed others. Adam did have other assets, but it is not suggested that he had ready access to £12 million, and indeed Adam himself was saying that he did not. Since there were reasonable questions as to whether the Estate could be confident that it would ultimately receive £12 million from Adam, it was not unreasonable for Jennifer to conclude that the Estate might be better off trying to develop the Farm itself.

38. My conclusion on this issue is that there was no point in time that there was a sufficiently worked-up offer for the Farm to be sold for £12 million, with sufficient comfort that the Estate would in due course receive that sum, to make it unreasonable for Jennifer to reject Adam’s offers.

39. Jennifer places some reliance on the need for any deal to be approved by beneficiaries of the Estate. Adam retorts that she had power to sell the Farm herself and could, if necessary, have applied to the court for directions. I do not consider that this debate adds that much to the issues that I have already addressed. There was never a sufficiently certain deal, that gave the Estate a high degree of comfort that all £12 million would be paid, that Jennifer could recommend to the other beneficiaries of the Estate.

40. Adam set himself the task of establishing that Jennifer acted unreasonably in rejecting all or any of the settlement offers he made. He has not succeeded in doing so. I will not, therefore, make any reduction to Adam’s costs liability in this respect. Indemnity basis or standard basis

41. The next question is whether costs should be awarded on the indemnity or standard basis. The parties are agreed that the central question is whether the circumstances of the case, and Adam’s conduct of it, take it “outside the norm”.

42. Jennifer points to three factors that she says takes the case outside the norm: i) Jennifer submits that this was a weak or speculative case, invoking the line of authority in Lejonvarn v Burgess [2020] EWCA Civ 114 , [2020] 4 WLR 43 and Three Rivers District Council v The Governor and Company of the Bank of England [2006] EWHC 816 (Comm) . Jennifer submits that the relevant test is whether at any point a reasonable person would have concluded, following commencement of the proceedings, that the case was so speculative or so thin that it should not have been proceeded with. That kind of “speculativeness” and “thinness” can be present even if the weakness in question is shown only at trial. It does not need to be a truly hopeless case for this aspect to be engaged. ii) Jennifer argues that Adam gave dishonest evidence at trial, and makes an analogy made with the facts set out in the judgment of Master Bowles in Grijns v Grijns [2025] EWHC 2853 (Ch) , in which significant dishonest evidence was given at trial and was held to justify a claim for indemnity costs. iii) Jennifer also criticised the number of witnesses that Adam called, that I described in the judgment as the farm witnesses.

43. The criticisms of the number of “farm witnesses” called can be dealt with quite briefly. I do not consider that has anything much to say about whether this case was outside the norm. Ultimately, I concluded that in many respects the farm witnesses’ evidence added relatively little, but I explained in my judgment that I understood why they had been called, and indeed Mr Troup KC wanted to cross-examine most of them.

44. Turning to the assertion that this was a weak and speculative case. Jennifer says that Adam should have known right from the moment proceedings were commenced how fatal it would be that he knew about the 2003 and 2007 Wills. She says that the inference must be that Valerie was either not asked about these Wills or that, whatever she said about them, was simply glossed over in her witness statements.

45. I will not make that inference. There was a factual disagreement as to whether Adam was told at the time about the 2003 and 2007 Wills. Ultimately I found, contrary to Adam’s case, that he was told about them and did know about them at the time they were made. However, while I did make some criticisms of Adam’s evidence in parts of the Judgment, I did not find that Adam was deliberately lying about this important point. Nor is it obvious that he was lying. The 2003 Wills and 2007 Wills were made a long time ago. In the Judgment I commented on the tendency noted in Gestmin that in the course of protracted litigation such as this, people come to believe strongly in their case. Adam was wrong, in my judgment, about the factual situation surrounding the 2003 and 2007 Wills, but I am not satisfied that he was lying in his evidence on this matter.

46. The next point made is that, given the surge in Giantswood’s value, Jennifer says that Adam should have appreciated all along how difficult the Proprietary Estoppel Claim would be from a proportionality perspective.

47. The first answer to that is that the surge in Giantswood had not happened at the time proceedings were issued and therefore cannot justify indemnity costs from the commencement of proceedings. More fundamentally, Adam’s whole case on the Proprietary Estoppel Claim was based on the proposition that he had suffered a “whole life detriment”. I did not accept that case at trial. However, if Adam was right about his lack of knowledge of the 2003 Will and the 2007 Will, it was an arguable proposition. If Adam’s case on “whole life detriment” had been accepted, he would have had a realistic argument, given the judgment of the Supreme Court in Guest v Guest [2024] AC 833 , that Richard should be held to his promise. I express no view on whether that argument would have succeeded, but it would have been realistic. The Proprietary Estoppel Claim was not “weak or speculative” so as to support an award of indemnity costs.

48. Jennifer argues that it was obvious that the Probate Claim was weak, given that Professor Burns had seen Richard during his lifetime and pronounced favourably on his capacity. She submits that a reasonable person would have concluded that Professor Burns’ evidence was always going to be preferred to that of Dr Series. Of course, I did ultimately prefer the opinion of Professor Burns and I did conclude that he had an advantage in having met Richard during his lifetime. However, Dr Series is an eminent expert witness who produced a careful expert report setting out the opposite conclusion to that of Professor Burns that had much to commend it. I do not consider that the Probate Claim was weak or speculative in the sense set out in Three Rivers or Lejonvarn .

49. Turning then to the accusation that Adam gave misleading evidence, there were certainly aspects of Adam’s evidence that I did not accept. Mr Troup KC’s skeleton argument picks out all the findings I made to this effect in the Judgment. However, this was a case involving a significant factual dispute on matters going back over 30 years. I did not reject all, or even much of, Adam’s evidence as being untrue or deliberately misleading. This was not a case such as Grijns v Grijns in which a claimant gave wholesale dishonest evidence at trial. Those instances on which Adam’s evidence has been shown to be wrong or untrue do not take the case sufficiently outside the norm to justify indemnity costs.

50. My conclusion is that Jennifer should have her costs on the standard basis throughout. Reduction to reflect Jennifer’s lack of success on some issues and her conduct of the litigation

51. The next issue is whether reduction should be made to reflect Jennifer’s lack of success on parts of the claim. I was referred to Foxton J’s judgment in Serious Fraud Office v Litigation Capital [2021] EWHC 2803 Comm, which makes clear that there is no automatic reduction when a party loses on part of its case because, especially in complicated litigation such as this, one can lose on some issues on the path to overall success. The more significant and self-contained an issue is, the more likely it is to attract a percentage reduction in costs if an otherwise successful party’s case on it does not succeed at the trial. By contrast, if an argument that fails is an alternative route to the same relief as an argument or series of arguments that succeed at trial, it is less likely that a reduction will be made.

52. Adam says that I should reduce Jennifer’s costs to reflect lack of success in two areas: (i) the Sham Tenancies Claim and (ii) her assertion that the Proprietary Estoppel Claim should fail because Adam was not coming to equity with “clean hands”. Indeed, Adam asks that an order for costs be made in his direction for the costs of him having to defend those aspects of Jennifer’s claim.

53. I will start with the “clean hands” aspect. Adam says that Jennifer spent much too much time trying to dig up evidence of Adam’s wrongdoing, and all of that work was not needed to put credibility in issue. I can see quite clearly that the clean hands arguments would have been expensive and time-consuming. However, in my judgment, they raised matters of legitimate enquiry at trial. The submission that certain factual matters led to an absence of “clean hands” was a legal submission that Jennifer overlaid on factual matters that, in my judgment, were largely going to be explored anyway.

54. That can be seen from considering the way in which the clean hands argument was put. The focus was on Adam’s behaviour in the last years of Richard’s life. Those matters were probably going to be explored anyway as part of a consideration of whether the September 2016 Will and December 2016 Will were rational. That was always going to involve an examination of whether Richard had a grievance against Adam that made it understandable for him to make such limited provision for Adam in those wills.

55. Adam’s clean hands argument also referred to Adam’s successful claim for adverse possession of the Verlux land. However, that was going to be explored anyway because it put Adam’s credibility in issue. Credibility was an important factor in this case given that Adam’s case was, to an extent, based on his account of oral promises that he said Richard made to him.

56. A further aspect of the clean hands argument was the assertion that Adam’s witness evidence was false. However, the truth or otherwise of Adam’s evidence was always going to be tested at trial.

57. In my judgment, the factual matters underpinning the clean hands argument were going to be explored anyway at trial. The incremental costs of putting a legal submission on top of submissions on factual matters, to the effect that Adam did not come to equity with clean hands, are not sufficient to justify a percentage reduction in costs to be awarded.

58. That then leads to the Sham Tenancies Claim. That was an allegation of dishonesty against Adam which did not succeed. It related to a separate and identifiable area of enquiry, and Adam rightly emphasises the value and importance of the issue. Following his success on it, he holds some 157 acres that he can farm and from which he can derive an income.

59. The Sham Tenancies Claim involved an enquiry as to arrangements in the mid-1980s regarding insurance. Some of those were probably going to be explored as part of the factual enquiry as to the nature of the promises that Richard was making to Adam at this time. The Sham Tenancies Claim also involved some consideration of the circumstances in which the 1988 Lease was granted. That was also wrapped up in the enquiry that the court was going to undertake anyway about Richard’s promise to set Adam up in farming. The Sham Tenancies Claim also involved some analysis of the car boot that was going to be looked at as part of the Proprietary Estoppel Claim and an examination of the ongoing arrangements between Richard and Adam about payment of rent which were also relevant to their business relationship generally.

60. That said, the Sham Tenancies Claim was, to an extent at least, a freestanding and self-contained part of the case. However, I do not consider it added much to the overall costs of the trial, given the overlaps that I have just explained. In my judgment, it is correct to reduce by 10% the costs that Adam should have to pay to Jennifer, because of the failure of this aspect of Jennifer’s case. Given the significant overlap with other parts of the claim on which Adam lost, I do not consider that Jennifer’s failure on the Sham Tenancies Claim justifies a payment of costs in the other direction from Jennifer to Adam.

61. Finally, I consider Adam’s criticism of Jennifer’s conduct of the litigation. Particular issue was taken with Jennifer’s challenge to the extent of, or fact of, Adam’s dyslexia. In my judgment, it was proper and acceptable for Jennifer to put Adam to proof of his medical condition. When the expert report was received confirming Adam’s condition, there may be some doubt as to whether it was reasonable for Jennifer to instruct her own dyslexia expert and subject Adam to a further examination. If so, that matter will be picked up in the standard basis assessment which will resolve matters in doubt in Adam’s favour. That conduct point can therefore be dealt with in a standard basis assessment, and I do not need to make any additional order in respect of it now. Overall conclusion on costs

62. My overall conclusion on the costs of the trial is that Adam should pay 90% of Jennifer’s costs on the standard basis throughout. Payment on account

63. During the hearing before me, it became common ground between the parties that, assuming assessment on the standard basis, an appropriate payment on account would normally be 90% of the budgeted costs. After the hearing, the parties reflected on the fact that the result of my general costs order is that Jennifer is to obtain only 90% of her costs assessed on the standard basis. They had differing views on what effect that should have on the amount of payment on account that I resolved in the final order I made with brief reasons. Interest on costs

64. The only live matter in dispute was the rate of interest that should apply to costs. Jennifer proposed base rate plus 2% from the date the costs were paid. That strikes me as a reasonable rate of interest for a borrower in Jennifer’s position, and that is the order for interest that I will make. (This Judgment has been approved by the Judge.) Digital Transcription by Marten Walsh Cherer Ltd 2 nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP Tel No: 020 7067 2900. DX: 410 LDE Email: [email protected] Web: www.martenwalshcherer.com