Genuine attempt to settle the proceedings

CPR 36.17(4) | Claimant’s Part 36 Offer Which Amounted To 99.7% Of The Claim Was A Genuine Attempt To Settle

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

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

Another Failure To Mediate And An Award Of Indemnity Costs

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.

All inclusive

An Interest Exclusive Part 36 Offer Is Not A Part 36 Offer

Can a Part 36 Offer which excludes interest be validly made either generally or in the context of proceedings?

It is been an issue on which a number of judges have held diverging views.

In the present case, His Honour Judge Dight CBE, upholding Deputy Master Campbell’s first instance decision, had concluded that an offer exclusive of interest cannot be a valid Part 36 offer.

In contrast, in a matter we reported in May, Horne v Prescot (No 1) Ltd [2019] EWHC 1322 (QB), Nicol J, dismissing an appeal from Master Nagalingam, held that, at least in the context of detailed assessment proceedings, an offer excluding interest can be an effective Part 36 offer.

So, what is the answer?

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

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 Part 36 offer.

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

Interest exclusive Part 36 Offers in detailed assessment proceedings

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

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

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

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.

white-anor-v-wincott-galliford-ltd

CPR 36.14 | 10% ‘Additional Amount’ Denied Following Successful Part 36 Offer On Hourly Rates

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 Part 36 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.

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

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

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.

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

Court of Appeal upholds validity of Part 36 Offer

The Court of Appeal has dismissed a challenge to the validity of a Part 36 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”