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
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 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 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.