SEABROOK V ADAM

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

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.

Infinity and beyond

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

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”?

Consequences

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

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.

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 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?

The Just Rewards Of A Good Part 36 Offer

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

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.

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)

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.

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”