DE MINIMIS BREACH OF RULES DID NOT LEAD TO PART 36 OFFER BEING INVALID
In Momonakaya v the Ministry of Defence [2019] EWHC 480 (QB) HHJ Blair QC considered whether a claimant had properly accepted a Part 36 offer. It was held that an offer that breached the rules in a de minimis way was…
AN OFFER TO SETTLE FOR NO DAMAGES CAN STILL BE A VALID PART 36 OFFER: APPEAL AGAINST NO ORDER FOR COSTS ALLOWED (IN PART)
In MR v Commissioner of Police for the Metropolis [2019] EWHC 1970 (QB) Mrs Justice McGowan allowed an appeal as to costs in a issue relating to Part 36. She held that the trial judge had erred in making no…
CLAIMANT’S PART 36 “SUBJECT TO A NIL CRU” WAS A VALID OFFER: IF THE DEFENDANT WAS CONFUSED THEY SHOULD HAVE SOUGHT CLARIFICATION
The judgment of District Judge Hickinbottom in Gibbons -v- Rotherham Doncaster and South Humber NHS Foundation Trust (o4/06/2019), discussed in an earlier post, also has an interesting section in relation to a Part 36 offer. “It seems to me the Defendant could…
CIVIL PROCEDURE BACK TO BASICS 53A: PART 36 AND COSTS AFTER THE COURT HAS LIMITED THE BUDGET TO COURT FEES: ALI -v-CHANNEL 5
Shortly after I completed the post on Part 36 offers after the costs budget has been confined to court fees Professor Dominic Regan reminded me that there is another example in Ali & Anor v Channel 5 Broadcast Ltd [2018] EWHC…
CIVIL PROCEDURE BACK TO BASICS 53: PART 36 AND COSTS AFTER THE COURT HAS LIMITED THE BUDGET TO COURT FEES
This may be an ambitious subject for the back to basics series. However here I want to look at the situation where a party has failed to file their costs budget timeously and the budget has been confined to court…
PART 36 OFFER WAS NOT AN EFFECTIVE ONE AND DEFENDANT HAD TO PAY COSTS
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…
CLAIMANT SUCCESSFUL IN APPEAL IN RECOVERING ADDITIONAL 10% IN DAMAGES WHEN OWN OFFER WAS BEATEN: THE ADDITIONAL AWARD SHOULD NOT BE CATEGORISED AS A “BONUS”
In JLE v Warrington & Halton Hospitals NHS Trust Foundation Trust [2019] EWHC 1582 (QB) Mr Justice Stewart overturned an order of the Master who declined to award the claimant an additional 10% in costs when they had beat their…
AN OFFER THAT IMPOSES A CONDITION AS TO COSTS IS NOT A VALID PART 36 OFFER: MERE FAILURE TO ACCEPT REASONABLE OFFER DOES NOT LEAD TO INDEMNITY COSTS
In Knight & Anor v Knight & Ors (Costs) [2019] EWHC 1545 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) held that an offer that attempted to limit costs was not a valid Part 36 offer. The judge…
PART 36 OFFER ON HOURLY RATE WAS VALID: HOWEVER INJUSTICE TEST MEANT CLAIMANT WOULD NOT RECOVER AN ADDITIONAL AMOUNT: MERE GAMESMANSHIP SHOULD BE AVOIDED
In White & Anor v Wincott Galliford Ltd [2019] EWHC B6 (Costs) Deputy Master Friston considered the effect of a Part 36 offer on the hourly rates to be applied on an assessment of costs. It was held that the…
PART 36 OFFER ON COSTS THAT STATES IT IS “EXCLUSIVE OF INTEREST” IS STILL A VALID OFFER: HIGH COURT DECISION CONSIDERED
I am grateful to barrister Jamie Carpenter for sending me a copy of the decision of Mr Justice Nicol in Horne -v- Prescot (No 1) Ltd 2019 1322 (QB). The case relates to whether a Part 36 offer on costs,…
PART 36: WHEN A CLAIMANT BEATS THEIR OWN PART 36 OFFER: NO INTEREST ON THE ADDITIONAL £75,000
In FZO v Adams & Anor [2019] EWHC 1286 (QB) Mrs Justice Cutts considered the issue of whether interest was payable on the additional sums that a defendant pays when a claimant beats their own Part 36 offer. THE CASE…
CIVIL PROCEDURE BACK TO BASICS 41: SEEKING CLARIFICATION OF A PART 36 OFFER: CPR 36.8
The decision in Calonne Construction Ltd v Dawnus Southern Ltd [2019] EWCA Civ 754 , looked at earlier in this blog highlighted one part of CPR Part 36 that often goes unnoticed. It is important that a recipient of a Part 36 offer…
DEFENDANT’S PART 36 OFFER WAS VALID: COURT OF APPEAL UPHOLD OFFER THAT REFERRED TO UNPLEADED COUNTERCLAIM AND SOUGHT 8% INTEREST AFTER EXPIRY
In Calonne Construction Ltd v Dawnus Southern Ltd [2019] EWCA Civ 754 the Court of Appeal upheld a finding that a defendant’s Part 36 offer was a valid one. The offer related to a counterclaim that had yet to be…
WHEN A CLAIMANT BEATS THEIR OWN PART 36 OFFER: A “CUT OUT AND KEEP” GUIDE: A JUDGMENT ON INTEREST OF INTEREST
The judgment of Mr Justice Bryan in Assetco Plc v Grant Thornton UK LLP [2019] EWHC 592 (Comm) provides a helpful review of the principles and authorities relating to the approach to be adopted when a claimant beats their own Part…
DEFENDANT ORDERED TO PAY COSTS AFTER REFUSING TO PAY PRE-ACTION COSTS: COURT OF APPEAL REFUSES TO GIVE PERMISSION TO APPEAL
In November last year I wrote about the case of Ayton -v- RSM Bentley Bennison & Ors [2018] EWHC 2851 (QB). This was a case in which the defendant refused to pay cost incurred prior to issue. Proceedings were issued and…
CLAIMANT BEATS ITS OWN PART 36 OFFER ON COSTS: DOESN’T GET ADDITIONAL 10%: “UNJUST” CONSIDERED
NB THIS DECISION WAS OVERTURNED ON APPEAL, SEE THE POST CLAIMANT SUCCESSFUL IN APPEAL IN RECOVERING ADDITIONAL 10% IN DAMAGES WHEN OWN OFFER WAS BEATEN: THE ADDITIONAL AWARD SHOULD NOT BE CATEGORISED AS A “BONUS” A claimant who beats their own…
THE EFFECT OF A WITHDRAWN PART 36 OFFER : DEFENDANTS NOT ENTITLED TO COSTS, BUT LED TO NO ORDER FOR COSTS THROUGHOUT
There is an interesting judgment in Britned Development Ltd v ABB AB & Anor [2018] EWHC 3142 (Ch) which should be read by anyone thinking of withdrawing a Part 36 offer. The defendants in this case made a Part 36 offer…
COURT HAS NO POWER TO MAKE AN ORDER FOR COSTS ON ACCOUNT AFTER ACCEPTANCE OF A PART 36 OFFER: HIGH COURT DECISION
NB THIS DECISION WAS NOT ACCEPTED AND EFFECTIVELY OVERRULED BY THE COURT OF APPEAL IN Global Assets Advisory Services Ltd & Anor v Grandlane Developments Ltd & Ors [2019] EWCA Civ 1764. It was held that the court does have a…
ADVISING YOUR CLIENT ON LITIGATION RISKS 5: IF YOU DON’T PAY COSTS BEFORE ISSUE IT COULD BE VERY EXPENSIVE AFTERWARDS
I am grateful to Sam Hayman from Bolt Burdon Kemp for sending me a copy of the High Court decision in Ayton -v- RSM Bentley Bennison & Ors [2018] EWHC 2851 (QB). It is one of those cases that illustrate…
NON COMPLIANCE WITH PEREMPTORY ORDERS: STRIKING OUT; LATE ATTEMPTS TO COMPLY; LATE “ACCEPTANCE” OF PART 36 OFFERS AND NO RELIEF FROM SANCTIONS: ALL LITIGATION LIFE IS HERE
In Devoy-Williams -v- High Cartwright & Amin [2018] EWHC 2815 (Ch) Mrs Justice Falk upheld a decision that an action was struck out and that relief from sanctions should not be granted. It is a reminder (amongst other things) of…
CONSTRUCTION OF A PART 36 OFFER: DEFENDANT’S ARGUMENT IS A PLOT TOO FAR
In Bentley Design Consultants Ltd v Sansom [2018] EWHC 2238 (TCC) Mrs Justice Jefford DBE considered a novel point on the construction of a Part 36 offer. She held that a Part 36 offer made by a claimant could not be…
COURT OF APPEAL DECISION ON CONSTRUCTION OF PART 36: IT IS NOT A PART 36 OFFER JUST BECAUSE THE PARTIES SAY SO: OFFERS CAN ONLY BE ASSESSED BY REFERENCE TO THE PLEADINGS
In Hertel & Anor v Saunders & Anor [2018] EWCA Civ 1831 the Court of Appeal upheld a decision that an offer made was not a valid Part 36 offer. It was held that a Part 36 offer had to be…
CLAIMANT OBTAINS INDEMNITY COSTS AFTER DEFENDANT’S LATE ACCEPTANCE OF PART 36 OFFER: “BIMBLING” AND OTHER TALES OF MODERN LITIGATION
On the Leigh Day website there is a link to a judgment of H.H.J Alan Gore QC (sitting as a High Court Judge) in the case of Holmes -v- West London Mental Health NHS Turst (29th June 2018). The judge…
FIXED COSTS CONTINUE WHEN DEFENDANT ACCEPTS A PART 36 OFFER OUT OF TIME: COURT OF APPEAL DECISION TODAY
I am grateful to Matthew Hoe, solicitor, at Taylor Rose TTKW for sending me a copy of the Court of Appeal judgment today in Hislop -v- Perde [2018] EWCA Civ 1726. KEY POINTS The Court of Appeal held that, in…
PART 36: COURT OF APPEAL SETS ASIDE ORDER THAT CLAIMANT SHOULD PAY COSTS FROM EARLIER DATE FOLLOWING LATE ACCEPTANCE OF AN OFFER
In the decision today in Tuson v Murphy [2018] EWCA Civ 1461 the Court of Appeal allowed an appeal against an order that a claimant accepting a Part 36 offer late should pay costs from a much earlier date than that…
COURT HAS A DISCRETION AS TO COSTS TO AWARD WHEN CLAIMANTS UNREASONABLY EXIT THE PORTAL: CPR 36.20 IS NOT DECISIVE
I am grateful to solicitor Matthew Hoe of Taylor Rose TTKW for sending me a copy of the transcript in Ansell & Evans -v- A.T & T (GB) Holdings Ltd (County Court at Oxford 14/12/2017 HHJ Clarke). A copy is…
THE DANGER (FOR CLAIMANTS) OF LEAVING PART 36 OFFERS OPEN: CLAIM £125,000, GET £950
It is worthwhile for every litigator (and insurer) to take a quick read of the report on Hogg -v- Newton (Teeside County Court 18th May 2018) which is reported on DAC Beachroft’s website.* It shows the importance, to a claimant…
DEFENDANT NOT ENTITLED TO INDEMNITY COSTS IF PART 36 OFFER NOT BEATEN: SUCCESS ON COSTS APPEAL HAS MINUSCULE IMPACT ON OVERALL COSTS OF APPEAL
In Shalaby v London North West Healthcare NHS Trust [2018] EWCA Civ 1323 the Court of Appeal upheld the principle that a defendant is not entitled to indemnity costs simply because a claimant has not beaten a Part 36 offer. It…
CIVIL PROCEDURE – BACK TO BASICS 6: NON-DISCLOSURE OF A PART 36 OFFER
This post is caused by some comments on Twitter this evening. A surprising number of cases where parties have, by one method or other, disclosed a Part 36 offer. This has been done by including the offers in the trial…
THE JUDGMENT IN ALI -v- CHANNEL 5 3: WHY A DEFENDANT SHOULD ALWAYS FILE A COSTS BUDGET: A REMINDER OF THE RULES
The final part of this trilogy on the judgment today in Ali & Anor v Channel 5 Broadcast Ltd [2018] EWHC 840 (Ch) shows why the defendant will be kicking themselves for not filing a costs budget. Some defendants are fairly…
THE JUDGMENT IN ALI -V- CHANNEL 5 2: CLAIMANTS FAILED TO BEAT PART 36 OFFER, NO GOOD REASON TO DEPART FROM NORMAL COSTS CONSEQUENCES
This is the second post about the decision on costs in Ali & Anor v Channel 5 Broadcast Ltd [2018] EWHC 840 (Ch). Here we look at the issue relating to Part 36. The defendant had made a Part 36 offer….
PART 36: ADDITIONAL AMOUNTS AFTER DEFENDANT FAILS TO BEAT CLAIMANT’S 36 OFFER: OFFER “IN THE BAG” SO DECISION CAN BE DEFERRED
We have already looked at the decision in JMX (A child by his Mother and Litigation Friend, FMX) v Norfolk and Norwich Hospitals NHS Foundation Trust [2018] EWHC 185 (QB) where Foskett J decided that a 90% offer on liability was a…
COSTS ON APPEAL – TWO ISSUES: COSTS AWARDED WHERE THERE WAS NO SCHEDULE BELOW: INDEMNITY COSTS WHEN A PARTY HAD MADE AN OFFER TO COMPROMISE AN APPEAL
An earlier post dealt with the substantive decision in Cross-v- Black Bull (Doncaster) Limited* (Sheffield County Court 21st December 2017). A short supplementary judgment dealt with two issues as to costs. KEY POINTS The fact that a party did not have a…
WHO SHOULD PAY WHAT WHEN A PART 36 OFFER IS WITHDRAWN? HIGH COURT DECISION: COSTS LIABILITY DOES NOT RUN FROM THE DATE OF AN OFFER THAT IS WITHDRAWN
In Ballard v Sussex Partnership NHS Foundation Trust [2018] EWHC 370 (QB) Mr Justice Foskett considered the impact of a Part 36 offer that had been withdrawn. He overturned an order that the claimant should pay the costs from the date…
PART 36 AND INTERIM PAYMENTS: SOMETHING TO BE WARY ABOUT : COURT OF APPEAL DECISION
The case of Gamal v Synergy Lifestyle Ltd [2018] EWCA Civ 210 is one that needs to be read with great care. A defendant who made a voluntary interim payment after making a Part 36 offer. The effect of this was…
A “PART 36 OFFER” THAT ATTEMPTS TO VARY USUAL COSTS CONSEQUENCES IS NOT A PART 36 OFFER AT ALL: HIGH COURT DECISION
In James v James & Ors [2018] EWHC 242 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) determined an interesting issue in relation to an offer made in the course of proceedings. A “Part 36” offer which attempted to…
90% WAS A GENUINE OFFER OF SETTLEMENT: CLAIMANT RECEIVES PART 36 BENEFITS AFTER OFFERING A 10% DISCOUNT
In the judgment today in JMX (A child by his Mother and Litigation Friend, FMX) v Norfolk and Norwich Hospitals NHS Foundation Trust [2018] EWHC 185 (QB) Mr Justice Foskett was very robust in his view that an offer of…
PART 36: THE UNCERTAIN PROGNOSIS AND THE CLAIMANT’S CONUNDRUM: FIVE POINTS TO THINK ABOUT
The earlier post on the Court of Appeal decision in Briggs -v- CEF Holdings Ltd [2017] EWCA 2363 (Civ) gives rise to a conundrum that claimants (and sometimes defendants) have to address. How do you advise a client when a Part 36…
ACCEPT A PART 36 OFFER LATE AND PAY THE CONSEQUENCES: LITIGATION CAN BE A HARSH WORLD
I have been waiting for a while to see the transcript of the Court of Appeal decision in Briggs -v- CEF Holdings Ltd [2017] EWCA 2363 (Civ), some people have even written enquiring whether I have covered it. It is a…
UNDERPAYMENT OF COURT FEES AND STRIKING OUT: CLAIMANT SUCCESSFUL ON APPEAL:
Exactly a year ago today His Honour Judge Robinson gave judgment in a case relating to under-payment the Court fees , see Wiseman -v- Martson. Judge Robinson gave judgment this morning in a case that covered similar ground. He allowed an…
THE COSTS OF PROVISIONAL ASSESSMENT: THE CAP ALWAYS FITS
In W Portsmouth and Company Ltd v Lowin [2017] EWCA Civ 2172 the Court of Appeal held that the cap on the costs of provisional assessment continues to apply even when a receiving party has beaten their own Part 36 offer…
CLAIMANT ACCEPTING PART 36 OFFER LATE: COURT ORDERED INDEMNITY COSTS FOR THE PERIOD BETWEEN EXPIRY AND ACCEPTANCE
In Lokhova v Longmuir [2017] EWHC 3152 (QB) Mr Justice Warby considered the court’s discretion when a claimant accepted a defendant’s Part 36 offer late. KEY POINTS A court had jurisdiction to vary the normal order for costs when a claimant…
CLAIMANT BEATS HIS OWN PART 36 OFFER: INTERESTS, COSTS AND HOW THE ADDITIONAL 10% IS CALCULATED
In Mohammed v The Home Office [2017] EWHC 3051 (QB) Mr Edward Peperall QC (sitting as a Deputy High Court Judge) considered the appropriate award for interest and additional damages when a claimant had beaten their own Part 36 offer. …
COSTS AFTER LATE ACCEPTANCE OF A DEFENDANT’S PART 36 OFFER: CLAIM £21.5 MILLION, ACCEPT £125,000: THE IMPORTANCE OF CLEAR VISION ON DAMAGES FROM THE OUTSET
In Optical Express Ltd & Ors v Associated Newspapers Ltd [2017] EWHC 2707 (QB) Mr Justice Warby considered arguments in relation to costs after late acceptance of a Part 36 offer. On the facts of that case he ordered that the…
LATE ACCEPTANCE OF PART 36 OFFER DID NOT TAKE THE HEART OUT OF THE USUAL RULES AS TO COSTS: PART 36.13 CONSIDERED IN DETAIL: CLAIMANT SURVIVES A HEATED ATTACK
I am grateful to Thomas Riis-Bristow from Irwin Mitchell solicitors for sending me a copy of the judgment of District Judge Truman in Knibbs -v-Heart of England NHS Foundation Trust (23/6/2017). It is an interesting (and important) consideration of…
WHEN THE CLAIMANT WAS REFUSED PERMISSION TO ACCEPT £300,000: WHAT HAPPENED NEXT? (THIS DOESN’T END WELL FOR SOMEONE)
Earlier this week there was a post on the case of Houghton (Stanley) -v- P.B. Donaghue (Haulage & Plant Hire Ltd & Ors) [2017] EWHC 1738 (Ch) in which a claimant was refused permission to accept an offer of £300,000 after…
ACCEPTING A PART 36 OFFER DURING A TRIAL: A MATTER OF JUDICIAL DISCRETION: CLAIMANTS HAD LOST THEIR CHANCE
I am grateful to barrister Simon Mills for sending me a copy of the judgment of Mr Justice Morgan in Houghton (Stanley) -v- P.B. Donaghue (Haulage & Plant Hire Ltd & Ors) 2017] EWHC 1738 (Ch). It relates to the question…
CLAIMANT’S PART 36 OFFERS AND LATE ACCEPTANCE: SOME JUDGES WILL, SOME JUDGES WON’T…
There have been numerous cases which have considered the appropriate approach of the courts when there is late acceptance by a defendant of a claimant’s Part 36 offer. Some of these have been considered on this blog, but by…
ISSUING NOTICE OF COMMENCEMENT OF COSTS PREMATURELY: CAN CAUSE PROBLEMS: CLAIMANT SUCCESSFUL ON THE THIRD ATTEMPT
There is an article on the Temple Garden Chambers website of the decision of Master Gordon-Saker of the judgment in Austin -v- East Sussex Fire and Rescue Service (08/08/17). The report concentrates upon the Master’s decision that he would not…
COSTS AFTER CLAIMANT’S PART 36 OFFER ACCEPTED LATE: FIXED COSTS, ASSESSED COSTS OR INDEMNITY COSTS? CIRCUIT JUDGE DECISION
I am grateful to Jonathan Frith from Winns solicitors for sending me a copy of the decision of HHJ Walden-Smith in Hislop -v- Perde a decision made in the County Court at Central London. I set the decision out in…
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