CPR 36.17(4) and the sometimes ‘unjust’ consequences of Part 36

INVISTA v BOTES AND OTHERS [2019] EWHC 1086 (Ch)

In this rare costs decision following a breach of confidence claim from their ex-employers, a multinational corporation, the defendants successfully persuaded HHJ Birss that despite his finding that the claimant had achieved a more advantageous outcome than their own Part 36 offer under CPR 36.17(1)(b), it would be unjust pursuant to CPR 36.17(4) to order that the usual costs consequences should apply.

Instead, he awarded the defendants 71% of their costs.

in my judgment, in the context in which it was made and given its terms, the Part 36 offer itself was not a genuine offer to settle.  In fact, if anything, I think the offer has proved to be a barrier to settlement of this dispute because since the offer was made and not accepted and then the admissions were made, the claimants seem to have been approaching this case as if they were entirely protected as to costs.

INVISTA v BOTES AND OTHERS [2019] EWHC 1086 (Ch)