SEABROOK V ADAM

Liability Only Part 36 Offer Ineffective Where Causation In Dispute | Court Of Appeal Decision

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In the course of this personal injury claim the Claimant had made two Part 36 Offers, to essentially the same effect, namely that he would accept 90% of his claim for damages and interest to be assessed, on the basis that liability was admitted. The Claimant had alleged that he had sustained two distinct injuries as a result of the Defendant’s negligence in the form of whiplash and injury to his lower back. He had claimed damages of approximately £10,000.

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Infinity and beyond

CPR 36.17(4) | Does It Apply To The Costs Of Detailed Assessment?

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CPR 36.17(4) applies where a Claimant beats its own Part 36 Offer in substantive proceedings bringing with it various rewards including a 10% uplift, enhanced interest and indemnity costs. The question to be addressed in this case was whether it applies equally to the costs of detailed assessment i.e. can you make a valid Part 36 Offer in respect of the costs of the detailed assessment proceedings and reap those same rewards if it is beaten? In other words, do the the costs of the detailed assessment proceedings, for the purposes of CPR 36.17(4), fall within “any issue that arises in the claim”?

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Consequences

CPR 36.17(4) | Just Consequences | Court Of Appeal Decision

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This Court of Appeal decision concerned the circumstances in which the award to a Claimant who beats its own Part 36 Offer of some or all of the specified relief under CPR 36.17 may be considered to be unjust.

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DSN v Blackpool Football Club Ltd (Rev 1) [2020] EWHC 670 (QB)

Another Failure To Mediate And An Award Of Indemnity Costs

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Having beaten his own offer at trial the Claimant was awarded indemnity costs under CPR 36.17(4)(b) from 21 days after the date on which it was made.

The Claimant also claimed indemnity costs on a broader basis and for a longer period by reason of the Defendant’s failure to engage in settlement discussions. or contemplate any form of ADR.

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consequences

CPR 36.17(4): Another Case Of Just Consequences

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There have been a number of cases recently dealing with the consequences under CPR 36.17(4) of a claimant beating its own offer. In this case the claimant beat its offer of £250,000 by over £200,000, being awarded approximately £458,500 at trial. The defendant argued that notwithstanding this fact, it would be unjust to visit the consequences set out in CPR 36.17 upon them.

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The Just Rewards Of A Good Part 36 Offer

CPR 36.17 And The Just Rewards Of A Good Part 36 Offer

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Mr Justice O’Farrell rounded up the authorities on CPR 36.17 and found that a Claimant who had beaten its own Part 36 Offer of £875,000 by less than £5,000 was nonetheless entitled to the benefits conferred by the rule, including enhanced interest on damages and costs, indemnity costs from 21 days after the date of the offer and an additional amount of £65,123.77.

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JLE v Warrington & Halton Hospitals NHS Trust Foundation Trust [2019] EWHC 1582 (QB)

High Court restores Claimant‘s ’additional amount’ under CPR 36.17(4)

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This was an appeal against the decision of Master McCloud not to award the claimant a 10% ‘additional amount’ under CPR 36.17(4) on grounds that it would be disproportionate and unjust to do so where the claimant had beaten its own offer by just £7,000 on a bill assessed at £431,813.05.

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HORNE v PRESCOT (NO.1) LTD [2019] EWHC 1322 (QB)

Interest exclusive Part 36 Offers in detailed assessment proceedings

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Disagreeing with Judge Robert Owen QC in Potter v Sally Montague (Nottingham CC), HHJ Nicol found that a Part 36 Offer made in detailed assessment proceedings and expressed to be exclusive of interest was a valid Part 36 Offer.

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Knight & Anor v Knight & Ors (Costs) [2019] EWHC 1545 (Ch)

A costs-inclusive “Part 36 Offer” is NOT a Part 36 Offer

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This was another in a line of cases which confirms that a Part 36 Offer cannot contain any provision as to costs. Disagreeing with Hildyard J in Proctor & Gamble Co v Svenska Celluslosa HHJ Paul Matthewsheld that he was bound by the Court of Appeal decisions in Mitchell v James and French v Groupama, neither of which had been cited to Hildyard J, that no term as to costs should be included in a Part 36 offer, even if to the benefit of the offeror.

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