PART 36 OFFER WAS NOT AN EFFECTIVE ONE AND DEFENDANT HAD TO PAY COSTS

July 4, 2019 · by · in Civil Procedure, Costs, Part 36

In  Bull v Desporte [2019] EWHC 1669 (QB) Mr Justice Knowles rejected the defendant’s argument that a Part 36 offer meant that she did not have to pay costs.

THE CASE

The claimant succeeded in an action for misuse of private information and copyright infringement. He obtained an award for damages and an permanent injunction.  The claimant applied for costs and an order for an interim payment of costs.

THE JUDGMENT ON COSTS

The judge rejected the defendant’s argument that a Part 36 offer she had made was an effective one.

“Part 36 offer and costs
    1. The Claimant seeks his costs pursuant to CPR r 44.4(2) as the successful party. The approved costs budget was £182 961. He also seeks a payment on account of £94 000.
    2. Ms Desporte resists the application. She says that she made a Part 36 offer on 31 May 2018 and in light of that she ought not to have to pay the Claimant’s costs. At that stage there was a counterclaim in libel by Ms Desporte against the Claimant. For reasons which I do not need to relate here, that claim was separated off from the Claimant’s privacy and copyright claims and was, in due course, struck out.
    3. Ms Desporte’s Part 36 offer was in the following terms:
a. She denied the copyright claim but said she was ‘happy to delete’ the photographs from her book ‘Google Me No Lies’ (‘the Book’).
b. She denied that the Book contained any private information. However, she said she was prepared to change the names of the Claimant’s children and to consider specific requests for non-disclosure ‘as stated prior to the commencement of litigation’.
c. In relation to her Part 20 counterclaim, she said she would settle it on the basis that: (a) there was an agreed statement corrected ‘misleading and false statements, particular those that claim the book is “pornographic”‘; (b) the Claimant (ie, the Part 20 defendant) do pay the Defendant’s (ie, the Part 20 claimant) ‘losses, costs, damages and compensation in respect of the counterclaim’.
d. Other costs orders that had been made in the Claimant’s favour were not to be enforced.
  1. I reject Ms Desporte’s submissions. The Defendant did not offer any financial settlement, and I have awarded the Claimant £12 550 in damages. He therefore plainly obtained a more advantageous result than that which the Defendant offered and so he is entitled to his costs in the usual way. The Defendant’s offer to edit the book came too late; as I set out in the judgment, from at least September 2017 onwards the Claimant sought a copy of manuscript, which the Defendant refused to provide. She repeatedly sought to mislead the Claimant and his lawyers about the Book’s contents. She went ahead and published the Book in November 2017 knowing that the Claimant would likely seek injunctive relief and damages if the Book contained private information, as I have found that it did. She was warned of these possible consequences in correspondence from the Claimant’s solicitor. Accordingly, there is no reason why she should not pay the Claimant’s costs.
  2. I order the Defendant to make a payment on account of costs in the sum of £94 000, as sought by the Claimant.”
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