High Court upholds a Claimant’s Part 36 Offer for nil damages in an action against the police

MR v Commissioner of Police for the Metropolis [2019] EWHC 1970

Allowing an appeal from a decision of HHJ Baucher in the Central London County Court Mrs Justice McGowan found than a claimant’s offer to accept “nil pounds with an admission of liability plus reasonable costs, to be assessed if not agreed” was a “significant concession” and therefore a genuine Part 36 offer.

At trial the claimant was awarded damages of £2,750. It was held that this was ‘at least as advantageous’ to the claimant as the proposals contained in his Part 36 offer and, as a consequence, he was entitled to all of the benefits set out in CPR 36.17(4).

“Giving up any and all claim to a financial remedy is, in my judgment a significant concession and therefore is a genuine Part 36 offer… That offer did engage the provisions of CPR 36.17 and accordingly does mean that the Appellant is entitled to his costs from the expiry of the relevant period, 14 August 2017. It is not unjust to apply CPR 36.17 in that way and to follow its provisions in the usual way, it would be unjust not to do so.”

Notably, in 2011, seven years before trial, the defendant had made its own Part 36 offer in the sum of £4,000 and offered an apology. However, this was without any admission of liability. HHJ Baucher had found at first instance that the claimant “could not accept the other party’s offer, in the monetary sense, because he wanted an admission” which he was entitled to pursue: Ashley v Chief Constable of Sussex [2008] 1 AC 962.

“Had he accepted that offer, the real issue would still have been outstanding and he still would not have restored his reputation. He is the successful party. It is the case that he was entitled to pursue, that is clear from Ashley, and the acceptance of the Part 36 offer would not achieve the purpose of the litigation.”

Mrs Justice McGowan held that this was entirely a matter within the judge’s discretion and no valid complaint could be made of that view.

Finally, it was found that the claimant’s failure to respond to an offer of a without prejudice discussion was worthy of criticism but had no direct effect on the course of the litigation.

“The Appellant failed to respond to the offer of a without prejudice discussion and the criticism of that failure has merit, (not least as matter of courtesy). However remiss that was it does not seem to me to have had, or be capable of having, any direct effect on the course of the litigation. The Respondent was not going to make the admission sought; there was no realistic prospect of such a resolution.”

MR v COMMISSIONER OF POLICE FOR THE METROPOLIS [2019] EWHC 1970 (QB)