“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…”
The consequences of Part 36 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.
In this case Mr Justice Zacaroli determined that the Claimant’s Part 36 Offer to settle its claim in the sum of £48,290.00, which amounted to 99.7% of the amount claimed was a genuine offer to settle the proceedings
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.
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.