email service

Part 36 Offer | Service By Email Validated But Not Without Consequence

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“I accept that a failure to comply with the rules of service in CPR Part 6 should not be taken lightly … No reason has been put forward by the claimant as to why the rules were not followed. On the other hand, it is clear that the defendants’ solicitors received the Part 36 offer on 15 December 2020. Mr Seitler does not contend otherwise. No complaint was made about the method of service of the Part 36 offer until shortly before the hearing on 3 November. No suggestion has been made that there is any prejudice to the third defendant in the Part 36 offer having been sent by email rather than having been served in some other way, for example by post. In these circumstances, it would in my view be … “a triumph of form over substance” if the court were to make an order invalidating the Part 36 offer…”

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Genuine attempt to settle

CPR 36.17 | Part 36 Offer To Accept £1 Was A Genuine Attempt To Settle

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The consequences of can be punishing, but it is a separate question whether they are unjust. The justice of Part 36 is that decisions about litigation should be economically utilitarian: it actively discourages litigation on ‘points of principle’ by making litigation not fought on a commercial basis a high stakes activity.

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

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

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Allowing an appeal from a decision of HHJ Baucher in the Central London County Court Mrs Justice McGowan found than an offer to accept “nil pounds with an admission of liability plus reasonable costs, to be assessed if not agreed” made by a claimant in the course of an action against the police for false imprisonment and assault was a “significant concession” and therefore a genuine offer.

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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 Offer made in detailed assessment proceedings and expressed to be exclusive of interest was a valid Part 36 Offer.

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white-anor-v-wincott-galliford-ltd

CPR 36.17(4) | 10% ‘Additional Amount’ Denied Following Successful Part 36 Offer On Hourly Rates

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This was a decision of Deputy Master Friston (author of Friston on Costs) in the Senior Courts Costs Office. Having determined that the Claimant had made and beaten a valid Offer solely in relation to hourly rates the Master concluded that it would be unjust to award them an additional 10% uplift on the assessed profit costs.

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

CPR 36.17(4) And The Sometimes ‘Unjust’ Consequences Of Part 36

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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 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.

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CALONNE CONSTRUCTION LTD v DAWNUS SOUTHERN LTD [2019] EWCA CIV 754

Court of Appeal upholds validity of Part 36 Offer

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The Court of Appeal has dismissed a challenge to the validity of a Offer on grounds that i) it was made in respect of both a claim and a proposed counterclaim which had yet to be pleaded; and it ii) contained provision for interest to accrue at a particular rate after the expiry of the “Relevant Period”

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