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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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

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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

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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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All inclusive

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

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

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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 Part 36 offer.

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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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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 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.

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