CONSEQUENCES OF LATE ACCEPTANCE OF CLAIMANT’S PART 36 OFFERS: RECENT DEVELOPMENTS

There is a useful report on the PIC website of a case where a claimant obtained indemnity costs after the defendant’s late acceptance of its Part 36 offer  The case of Car Craft Test Centre -v- Trotman a decision by District Judge Etherington on the 3rd February 2017.

THE DECISION

The judgment  is by District Judge Etherington at Stoke County Court. He decided that CPR 36.13(5) was the starting point – whether it would be unjust to make such an award.  The judge considered the criteria in CPR 37.17(5). None of the facts in the current case made it unjust to make the order requested by the claimant.

CPR 37.17(4) – (6)

(4) Where—

(a) a Part 36 offer which was made less than 21 days before the start of a trial is accepted; or

(b) a Part 36 offer which relates to the whole of the claim is accepted after expiry of the relevant period; or

(c) subject to paragraph (2), a Part 36 offer which does not relate to the whole of the claim is accepted at any time,

the liability for costs must be determined by the court unless the parties have agreed the costs.

(5) Where paragraph (4)(b) applies but the parties cannot agree the liability for costs, the court must, unless it considers it unjust to do so, order that—

(a) the claimant be awarded costs up to the date on which the relevant period expired; and

(b) the offeree do pay the offeror’s costs for the period from the date of expiry of the relevant period to the date of acceptance.

(6) In considering whether it would be unjust to make the orders specified in paragraph (5), the court must take into account all the circumstances of the case including the matters listed in rule 36.17(5).

CPR 36.17(5)

(5) In considering whether it would be unjust to make the orders referred to in paragraphs (3) and (4), the court must take into account all the circumstances of the case including—

(a) the terms of any Part 36 offer;

(b) the stage in the proceedings when any Part 36 offer was made, including in particular how long before the trial started the offer was made;

(c) the information available to the parties at the time when the Part 36 offer was made;

(d) the conduct of the parties with regard to the giving of or refusal to give information for the purposes of enabling the offer to be made or evaluated; and

(e) whether the offer was a genuine attempt to settle the proceedings.

(6) Where the court awards interest under this rule and also awards interest on the same sum and for the same period under any other power, the total rate of interest must not exceed 10% above base rate.

ANOTHER CASE THAT ADDS TO THE DEBATE

This issue was discussed in a post last October – The Great Debate.  There are contrasting views and, at the moment, contradictory decisions.  A decision from a higher court, or a rule change clarifying the position, would be welcome.

VIEWS FROM OTHER BLOGS

See also

• Kerry Underwood’s post – Does a claimant get indemnity costs on late acceptance?                                                                                                                                                                                                   Andrew Hogan’s two posts on the subject:
• Late acceptance of Part 36 offers and indemnity costs
•   Late acceptance of claimants’ part 36 offers II

RELATED POSTS: PART 36

• Has a Part 36 offer been beaten when the value of currency changes? A High Court decision.
• Claimant’s Part 36 offers: when has the claimant beaten its own offer?
• Part 36: additional amounts and interest.
• Indemnity costs on appeal after Part 36 offer.
• Costs should not normally be reduced when a claimant beats their own Part 36 offer: Court of Appeal decision.
• Part 36: the costs consequences of late acceptance
• Part 36 offer did not encompass payment on account
• Fixed costs and Part 36: the judgment in the Court of Appeal.
• Lord Chancellor gets a bonus: the powerful results of a claimant’s Part 36 offer.
• Not a racing certainty: but indemnity costs follow claimant’s Part 36 offer.
• Part 36: when the normal costs penalties may not apply
• Is this a claimant’s or defendant’s offer? Another important decision on Part 36
• Clarification of a Part 36 offer has a major effect on costs.
• Costs where a claimant accepts a Part 36 offer late: two cases where the claimant came to grief
• Another case where there was an invalid Part 36 offer
• Is this a Part 36 offer I see before me? That’s an important question
• How relevant are Part 36 offers to issue based orders?
• Knowing the risks and advantages for the claimant in the new Part 36.
• The costs consequences of Part 36 offers: do they always apply? The cases in detail.
• Costs consequences of Part 36 offers: some interesting examples
• Costs, conduct, Part 36 and the “Winning Party”.
• Interest and costs when a claimant beats their own Part 36 offer.
• Costs of £7 million: Part 36 bites hard on claimants who cleared a first hurdle but fell at the second.
• Claimant beats own Part 36 offer and receives an additional £75,000 in damages.
• The dangers of a Part 36 offer: Claimant pays three times more in costs than he receives in damages.
• Another example of a successful defendant not recovering all of its costs (and of the advantages of a Part 36 offer).

• Percentage costs orders after a claimant beats their own Part 36 offer: a High Court decision.
• Very important decision on Part 36 offers, assessment of costs and additional amounts when offers not beaten.
• Increased interest and costs after claimant beats its own Part 36 offer.
• Part 36 offer does not override the need to serve the claim form.
• Part 36: Indemnity costs when a defendant accepts out of time.