CLAIMANT DID NOT RECEIVE PART 36 BENEFITS WHEN IT BEAT ITS OWN OFFER BY SEVEN PENCE: A REQUEST TO CAPITULATE IS NOT A GENUINE OFFER OF SETTLEMENT

June 6, 2023 · by · in Civil Procedure, Costs, Part 36

I am grateful to barrister James Miller for sending me a copy of the judgment of District Judge Griffith in Gohil -v-Advantage Insurance Company (County Court at Birmingham, 11th May 2023) a copy of which is available here. Gohil v Advantage Insurance Company Limited

The judge considered an argument that the claimant should recover the usual consequences of Part 36 in a case where it had beaten its offer by 7 pence.

 

 

 

“I find a reduction of 7 pence was tantamount to asking the Defendant to completely capitulate its position and was not a genuine attempt to settle the proceedings”.

THE CASE

The claimant brought an action for damages which fell within the fixed costs regime. Those fixed costs amounted to £4,937.07.  The claimant made a Part 36 offer of £4,937.00 (7 pence less than the sum claimed).  The defendant was ordered to pay the fixed costs at £4,937.07. The issue arose as to whether the Claimant was entitled to the normal order under Part 36, having beaten their own offer.

 

THE JUDGMENT

The judge considered the case law in detail.

  • The defendant accepted that the claimant’s offer was at least as advantageous as the eventual award.
  • This meant that the claimant was entitled to the award unless the court considered it unjust to do so.

The judge stated that “I find a reduction of 7 pence was tantamount to asking the Defendant to completely capitulate its position and was not a genuine attempt to settle the proceedings”.

  • The discount offered presented to no real opportunity for settlement but appeared to be a tactical step designed to secure the benefit of incentives

Taking into account all the circumstances of the case the additional awards in 36.17 will not apply.