NINE YEARS ON V: 2017: THE CLAIMANT THAT TURNED DOWN A PART 36 OFFER OF £1.5 MILLION AND GOT £2 INSTEAD: A LESSON FOR LITIGANTS WITH MOUTHS TOO WIDE
Choosing one case from each year is not an easy task. We have reached 2017 and I have selected two posts which relate to the same case. A claimant sought damages of £15 million but failed to prove it had…
AN AGREEMENT TO PAY COSTS WAS TO PAY FIXED COSTS ONLY:NOT DISPLACED BY LATER “PART 36” OFFER: DEFENDANT SUCCESSFUL ON APPEAL
I am grateful to Simon Fisher from DWF for sending me a copy of the judgment of HHJ Luba QC, sitting with Costs Judge Rowley, in Soares -v- Wilson (27th May 2022). A copy of which is available Soares v Wilson…
DEFENDANTS WERE TOO LATE TO ACCEPT A PART 36 OFFER: THEIR APPLICATIONS FOR RELIEF FROM SANCTIONS ALSO DENIED
In Wirex Ltd v Cryptocarbon Global Ltd & Ors [2022] EWHC 1161 (IPEC) HHJ Hacon determined some interesting issues in relation to attempts to accept Part 36 offers late and relief from sanctions. THE CASE The claimants had obtained a…
WHAT DO YOU DO IF THE DEFENDANT MAKES AN EARLY PART 36 OFFER? WEBINAR 8th JULY 2022
In the recent case of MRA -v- The Educational Fellowships Ltd [2022] EWHC 1069 (QB) it was held that the claimant had to face the usual Part 36 consequences when a Part 36 offer was accepted late. The fact that there…
PART 36: JUDGES SHOULD NOT LET THEIR HEARTS RULE THEIR HEADS: CLAIMANT ACCEPTING AN OFFER LATE FACES FULL COSTS CONSEQUENCES THAT FLOW
In the judgment in MRA -v- The Education Fellowship Limited [2022] EWHC 1069 (QB). Master McCloud held that it was not unjust for the usual principles in relation to costs to apply following a claimant’s late acceptance of a defendant’s…
PART 36 BENEFITS PAID TO A SUCCESSFUL CLAIMANT: THE ISSUES CONSIDERED: IT WAS NOT UNJUST FOR THE USUAL PART 36 CONSEQUENCES TO APPLY
We are returning to the judgment in Ashford Borough Council & Anor v Wilson [2022] EWHC 988 (QB) Darryl Allen QC, sitting as a High Court judge. The earlier post looked at the issue of whether the defendant was bound by…
A PART 36 OFFER SHOULD NOT BE DISCLOSED AT AN INTERLOCUTORY STAGE: DEFENDANT LOOKING FOR STRAWS IN THE WIND
In FKJ v RVT & Ors [2022] EWHC 411 (QB) Mrs Justice Collins Rice upheld a decision that a claimant’s Part 36 offer could not be used in interlocutory proceedings. This is a decision on its own facts and the…
THE SOMETIMES CRUEL WORLD OF PART 36 OFFERS: INSPIRED GUESSWORK MAY BE NECESSARY WHEN A PARTY RECEIVES AN OFFER: A REMINDER OF THE CASE LAW
As part of a series of webinars by Kings Chambers Costs and Funding Group I recently recorded a webinar on Part 36 Recent cases and what they can teach us. One case, in particular, cause some comment and questions from…
WHAT HAPPENS AT A SUMMARY ASSESSMENT OF THE COSTS OF A TRIAL? ALSO THE COSTS AND INTEREST THAT FOLLOWS A PART 36 OFFER
We have already looked at the judgment of HHJ Pearce (sitting as a High Court Judge) in The Huntsworth Wine Company Ltd v London City Bond Ltd [2022] EWHC 98 in relation to the construction of Part 36 offers. This was…
A PART 36 OFFER CANNOT BE REDUCED BECAUSE OF A DEDUCTIBLE: AN INSURER IS BOUND BY THE TERMS OF THE OFFER IT MADE
I am grateful to solicitor John McQuater for sending me a copy of the decision in Denton -v- Ms Amlin Underwriting (County Court at Doncaster 6th August 2021). It relates to an insurer defendant attempting to deduct an excess figure…
A DEFENDANT MAKES A PART 36 OFFER BUT IT CAN BE A “CLAIMANT’S” PART 36 OFFER WITH ALL THE USUAL CONSEQUENCES: A CASE ABOUT MISSING CASES
The judgment of HHJ Pearce (sitting as a High Court Judge) in The Huntsworth Wine Company Ltd v London City Bond Ltd [2022] EWHC 98 (comm) contains a detailed consideration of several aspects of the law of costs. It is…
TRIALS ON PRELIMINARY ISSUES, CALDERBANK OFFERS AND COSTS: COURT OF APPEAL REJECT SUBMISSION THAT “WOULD REPRESENT THE ANTITHESIS OF GOOD POLICY” & “REWARD BAD BEHAVIOUR”
In the judgment in McKeown v Langer [2021] EWCA Civ 1792 the Court of Appeal rejected an argument that a Calderbank offer had the same effect as a Part 36 offer when a court was considering the issue of costs…
PART 36 OFFER STILL VALID EVEN IF SERVED BY EMAIL: DEFENDANT DID NOT HAVE TO PAY THE USUAL PART 36 CONSEQUENCES
In London Trocadero (2015) LLP v Picturehouse Cinemas Ltd & Ors [2021] EWHC 3103 (Ch) Robin Vos, sitting as a High Court Judge, held that a Part 36 was still valid even if served by email. However, on the facts…
SECRETARY OF STATE DEFENDANT MUST PAY THE ADDITIONAL LIABILITY AFTER IT FAILED TO BEAT A PART 36 OFFER ON COSTS: THE “PUBLIC PURSE” HAS NO SPECIAL STATUS AS A LITIGANT
In TT, R (On the Application Of) v Secretary of State for the Home Department [2021] EWHC B21 (Costs) Deputy Master Campbell found that the Secretary of State was liable to pay an additional sum when it failed to beat…
PART 36: OFFERS MUST BE CONSIDERED EVEN THOUGH ALL THE PIECES OF THE JIGSAW ARE NOT IN PLACE: CONSEQUENCES ARE IMPOSED ON THE ACTUAL AMOUNT AWARDED NOT THE SUM THAT THE MAKER WOULD HAVE SETTLED FOR
I am grateful to Professor Dominic Regan for drawing my attention to the judgment of Mr Justice Kerr today in Equitix Eeef Biomass 2 Ltd v Fox & Ors [2021] EWHC 2781 (TCC). The judge rejected the notion that the…
JUDGE WAS CORRECT TO ORDER DEFENDANT TO FACE NORMAL CONSEQUENCES WHEN CLAIMANT BEAT THEIR OWN PART 36 OFFER: HIGH COURT DECISION
There is another aspect of the judgment in Elgamal v Westminster City Council [2021] EWHC 2510 (QB) that needs consideration. The judgment on fundamental dishonesty was considered in the previous post. The defendant was unsuccessful in their appeal against the…
SETTLEMENT AGREEMENT DISPLACED PART 36 RULES: BE CAREFUL WHAT YOU ARE OFFERING: TROUBLE AT SEA WHEN TWO RULES COLLIDE
The judgment of Clare Ambrose (sitting as a High Court judge) in Falcon Trident Shipping Ltd v Levant Shipping Ltd [2021] EWHC 2204 (Comm) held that a settlement agreed drafted after acceptance of a Part 36 offer displaced the provisions…
“THE SOMETIMES HARSH, EVEN BRUTAL, DEFAULT CONSEQUENCES OF 36.17 MUST BE APPLIED IN THE PRESENT CASE”: RECOVER £10 IN DAMAGES AND STILL GET COSTS ON THE INDEMNITY BASIS
In Shah & Anor v Shah & Anor [2021] EWHC 1668 (QB) Mrs Justice Collins Rice upheld the decision of the trial judge that the defendants should bear the normal Part 36 consequences when the claimants had made a Part…
THE ASSESSMENT OF COSTS: A “NEAR MISS” OFFER IS NOT ENOUGH
In Mullaraj v Secretary of State for the Home Department [2021] EWHC B5 (Costs) Deputy Costs Judge Campbell rejected an argument that a “different order” for costs should be made following an assessment of costs. The paying party had made…
CLAIMANTS RECOVER NO COSTS AT ALL WHEN ANSWERS TO QUESTIONS WERE “DIRECTLY UNTRUE”: ALSO LIABLE FOR INDEMNITY COSTS FOR A PERIOD
This blog has looked twice at the judgment of Mr Justice Fraser in Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd [2021] EWHC 1116 (TCC). There is now a sequel. In Beattie Passive Norse Ltd & Anor v Canham Consulting…
DEFENDANT FAILS TO BEAT CLAIMANT’S PART 36 OFFER: PART 36 CONSEQUENCES HELD NOT TO APPLY: THE CONSEQUENCES OF SERVING EVIDENCE LATE
The judgment of Mr Justice Johnson in Head v The Culver Heating Co Ltd [2021] EWHC 1235 (QB) is one that is of profound interest to those involved in fatal accident litigation. I will be writing about the damages aspect…
A PART 36 OFFER MADE LESS THAN 21 DAYS BEFORE TRIAL: WHAT HAPPENS IF THE TRIAL IS ADJOURNED
In Reader v SPIE Ltd & Anor [2021] EWHC 1221 (QB) Mr Justice Andrew Baker considered an issue in relation to the construction of CPR 36. A party made an offer less than 21 days before the date set for…
CAN THE COURT MAKE A COSTS ORDER AFTER A THE FIRST PART OF A SPLIT TRIAL? THE RELEVANCE OF A PART 36 OFFER
In Original Beauty Technology Company Ltd & Ors v G4k Fashion Ltd & Ors [2021] EWHC 954 (Ch) David Stone (sitting as a High Court judge) considered the question of whether the court should make a costs order after a…
PART 36: ACCEPTANCE, WITHDRAWAL AND PROTECTED PARTIES: HIGH COURT DECISION
In Wormald v Ahmed [2021] EWHC 973 (QB) Ms Clare Ambrose (sitting as a Deputy High Court Judge) considered the difficult issue of whether a protected party can accept a Part 36 offer and its interaction with the need for…
COSTS, CONDUCT AND ASSESSMENT ON THE INDEMNITY BASIS: £2 MILLION SPENT TO RECOVER £40,666.47
An earlier post looked at the construction of the Part 36 offer in Kings Security Systems Ltd v King & Anor [2021] EWHC 653 (Ch) Andrew Lenon Q.C. (sitting as a Deputy Judge of the Chancery Division). Here we look at…
AMBIGUITY AS TO DATE DID NOT INVALIDATE A PART 36 OFFER: HIGH COURT DECISION
In Kings Security Systems Ltd v King & Anor [2021] EWHC 653 (Ch) Andrew Lenon Q.C. (sitting as a Deputy Judge of the Chancery Division) rejected the defendants’ arguments that an ambiguity as to the date meant that a Part…
CLAIMANT’S PART 36 OFFER TO ACCEPT 90% OF DAMAGES NOT EFFECTIVE WHEN CAUSATION IS IN ISSUE: COURT OF APPEAL DECISION TODAY
In the judgment today in Seabrook v Adam [2021] EWCA Civ 382 the Court of Appeal considered when a Part 36 offer to accept a reduced percentage on liability was effective when only causation was in dispute. It was held…
IF A DEFENDANT IS BEING SUED FOR TOO MUCH MONEY THEN IT SHOULD USE PART 36: COURT OF APPEAL OVERTURN DECISION THAT THERE SHOULD BE NO ORDER FOR COSTS
In Global Energy Horizons Corporation v Gray [2021] EWCA Civ 123 the Court of Appeal overturned a decision that there be no order for costs. The fact that the claimant had succeeded on a fraction of its claim was not…
RULE CHANGES COMING INTO FORCE IN APRIL 2021 (2): PART 36 OFFERS AND THE ACCRUAL OF INTEREST AFTER THE RELEVANT DATE FOR ACCEPTANCE
The Civil Procedure (Amendment) Rules 2021 introduce a new CPR 36.5 (5)introduce a new rule as to offers and interest after the expiry of an offer. It enables the party making the offer to include provision for interest to accrue after…
PART 36 AND THE ASSESSMENT OF COSTS: CLAIMANT ALLOWED TO RAISE THE ISSUE LATE, BUT TO NO GREAT AVAIL
In Best v Luton & Dunstable Hospital NHS Foundation Trust [2021] EWHC B2 (Costs) Costs Judge Leonard allowed a claimant to raise an argument as to Part 36 benefits following an offer in assessment proceedings. However it was held that…
THE DANGER OF CLAIMANT’S PART 36 OFFERS: THE DEFENDANT CAN WAIT ONE DAY AND THEN PUT COSTS AT LARGE
In Pallett v MGN Ltd [2021] EWHC 76 (Ch) Mr Justice Mann considered a major anomaly in the rules relating to claimant’s Part 36 offers. This shows that any claimant making a Part 36 offer must remember that a defendant…
SWIFT -v- CARPENTER: THE SUBSEQUENT COSTS JUDGMENT: AN ADDITIONAL £65,095.65; INDEMNITY COSTS & INCREASED INTERESTS: THE WISDOM OF MAKING A PART 36 OFFER WHEN APPEALING
On the day when it is announced that the Court of Appeal refused permission to appeal in the case of Swift -v- Carpenter it is interesting to look at the subsequent judgment on costs given today in Swift v Carpenter…
COSTS: “ROLLED UP” OFFER OF SETTLEMENT, INCLUDING COSTS DID NOT GIVE A DEFENDANT ANY PROTECTION
The judgment of Mr Justice Freedman in Comberg v VivoPower International Services Ltd & Anor [2020] EWHC 2787 (QB) contains many interesting observations in relation to damages, mitigation and costs. Here I want to isolate one element – the fact…
PART 36: JUDGE WAS WRONG NOT TO ALLOW ENHANCED INTEREST WHEN CLAIMANT BEAT ITS OWN OFFER: COURT OF APPEAL DECISION
In the judgment today in Telefonica UK Ltd v The Office of Communications [2020] EWCA Civ 1374 the Court of Appeal overturned the decision of the trial judge not to award additional interest on damages and costs in a case…
CIVIL PROCEDURE BACK TO BASICS 84: HOW NOT TO MAKE A PART 36 OFFER THAT IS NOT VALID:
You may not care to believe it but the title of this post is deliberate, there is a double negative and a lack of clarity. This reflects the ambiguities and uncertainties in many of the attempts at Part 36 offers…
COURT MAKES 5% REDUCTION IN SUCCESSFUL CLAIMANT’S COSTS RATHER THAN AN ISSUE BASED COSTS ORDER
This is the fourth look this blog looks at the judgment in Essex County Council v UBB Waste (Essex) Ltd (No. 3) [2020] EWHC 2387. This time we are looking at the question of whether there should be a deduction in…
DID A CLAIMANT DO BETTER THAN ITS OWN PART 36 OFFER? THE SECOND PART OF THE ESSEX CASE
Continuing with the issues about Part 36 in Essex County Council v UBB Waste (Essex) Ltd (No. 3) [2020] EWHC 2387 (TCC) looked at in the earlier post. The judge went on to consider whether the claimant had, in fact,…
DATE ON LETTER DID NOT PREVENT IT BEING A VALID PART 36 OFFER: NO ESTOPPEL IN THE CONSTRUCTION OF PART 36 OFFERS: HIGH COURT DECISION TODAY
In Essex County Council v UBB Waste (Essex) Ltd (No. 3) [2020] EWHC 2387 (TCC) Mr Justice Pepperall considered arguments relating to the validity of Part 36 offers. He found that the offer the claimant made was a valid Part…
WHAT IS THE IMPACT OF A WITHDRAWN PART 36 OFFER ON COSTS? IT DEPENDS: COURT CONSIDERS THE RELEVANT TEST
In the judgment today in Blackpool Borough Council v Volkerfitzpatrick Ltd [2020] EWHC 2128 (TCC) HHJ Stephen Davies, sitting as a judge of the High Court, considered the effect of a withdrawn Part 36 offer. There is an important consideration…
“SUCCESSFUL” CLAIMANT RECOVERS 60% OF HIS COSTS BUT PAYS THE COSTS OF TRIAL: ISSUED BASED COSTS ORDERS CONSIDERED
The vast majority of people who read the cases discussed in this blog will (I would wager a bet) often be thinking “Was there a Part 36 offer?” “What happened about costs?” We can get a glimpse into these issues…
FIXED RECOVERABLE COSTS, PART 36 AND “EXCEPTIONAL CIRCUMSTANCES”: A CIRCUIT JUDGE DECISION
I am grateful to my colleague Erica Bedford for sending me a copy of the decision of HHJ Godsmark QC in Young -v- AXA Insurance UK Ltd, a copy of which is available here LN2018-15 Young v AXA Judgment as…
PART 36 CONSEQUENCES APPLY (IN PART) WHEN CLAIMANT MAKES AN OFFER OF A 0.3% DISCOUNT
In Rawbank SA v Travelex Banknotes Ltd [2020] EWHC 1619 (Ch) Mr Justice Zacaroli ordered that some of the consequences of Part 36 should apply when a claimant made an offer to settle a debt for a slightly reduced figure. …
NO ISSUE BASED COSTS ORDER AND PART 36 BENEFITS APPLIED WHEN CLAIMANT BEAT HIS OWN PART 36 OFFER: HIGH COURT DECISION TODAY
In Scales v Motor Insurers’ Bureau [2020] EWHC 1749 (QB) Mr Justice Cavangh rejected the defendant’s submission that there should be an issue based costs order and awarded a claimant the usual Part 36 benefits when he beat his own…
MISTAKES IN THE PORTAL: “ROUGH JUSTICE” AND ERRORS IN OFFERS: CLAIMANT’S CLAIM STRUCK OUT AS AN ABUSE OF PROCESS
I am grateful to barrister Matthew Turner for bringing my attention to his report of the case of Mahoney v Royal Mail (DDJ Doman, Truro CC, 26/05/20) it is another example of mistakes being made in offers. In this case…
ACCEPTING AN OFFER DURING A HEARING: CONTRACTUAL PRINCIPLES, NOT PART 36, APPLY: OFFER DID NOT LAPSE AT THE DOOR OF THE COURT
Offers of settlement can, and often are, made outside the ambit of Part 36. In MEF v St George’s Healthcare NHS Trust [2020] EWHC 1300 (QB) Mr Justice Morris considered issues relating to late acceptance of offers. The case shows…
COVID REPEATS 25: COSTS WHEN A CLAIMANT RECEIVES NOMINAL DAMAGES: YOU’VE TURNED DOWN £1.5 MILLION, RECEIVED £2 & NOW HAVE TO FACE THE CONSEQUENCES
Failing to beat a Part 36 offer is always painful. Failing to beat an offer of £1.5 million and receiving £2 is, most probably, even more painful. Here we look at the second part of the case discussed yesterday. In Marathon…
CLAIMANT BEATS OWN PART 36 OFFER: DEFENDANT ORDERED TO PAY INDEMNITY COSTS FOR AN EXTENDED PERIOD BECAUSE OF ITS CONDUCT
I am grateful to Sam Hayman from Bolt Burdon Kemp for drawing my attention to the decision today of Mr Justice Griffiths in DSN v Blackpool Football Club Ltd [2020] EWHC 670 (QB). The defendant was ordered to pay indemnity…
INDEMNITY COSTS ON THE GROUNDS OF CONDUCT: FAILURE TO BEAT A DEFENDANT’S PART 36 OFFER: A GARDEN THAT GETS MORE AND MORE EXPENSIVE…
The Court of Appeal decision in Lejonvarn v Burgess & Anor [2020] EWCA Civ 114 is the second time this case, about a garden, has been on appeal. On this occasion the Court of Appeal held that the claimants’ conduct…
PART 36, FATAL ACCIDENT CLAIMS AND PRE-ACTION SETTLEMENT: A POINT FOR BOTH CLAIMANTS AND DEFENDANTS TO WATCH
The judgment of Mr Justice Turner in Kore v Brocklebank [2019] EWHC 3491 (QB) raises some interesting issues in relation to Part 36 and fatal accident claims. It means that both claimants and defendants will have to take considerable care…
INTEREST ON PART 36 OFFERS: COURT OF APPEAL DECISION TODAY: “THE LAW REPORTS ARE OVER-FULL OF CASES IN WHICH PARTIES MADE OFFERS OUTSIDE THE SCOPE OF PART 36 AND THEN UNSUCCESSFULLY SOUGHT TO OBTAIN THE PART 36 BENEFITS LATER”
In King -v- City of London Corporation [2019] EWCA Civ 2266 the Court of Appeal set out the position in relation to whether an offer exclusive of interest can be made. I am grateful to Matthew Hoe from Taylor Rose…
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