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…
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…
2019 AND CIVIL PROCEDURE – A ROUND UP OF THE ROUND UPS: WHAT TO FRET ABOUT AND WHAT NOT TO FRET ABOUT…
There have been a series of annual reviews on key topics throughout December. To round off the year it seemed a good idea to provide a reminder of them all and put the links in one place 2019 AND CIVIL…
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…
2019 AND CIVIL PROCEDURE THE YEAR IN REVIEW: PART 36: THE GROWTH IN CLAIMANT’S PART 36 OFFERS – AND WHY THE CONSEQUENCES USUALLY APPLY
Looking back it is clear that this has been a very busy year for cases on Part 36. Part of the reason for this has been the growth in cases relating to claimant’s offers. There are a number of key…
CORRECT INTEREST RATE ON COSTS WHEN CLAIMANT BEATS THEIR OWN PART 36 OFFER: TRIAL JUDGE WAS ENTITLED TO AWARD 10% OVER BASE
There are several interesting aspects of the judgment of Mr Justice Saini in Essex County Council & Ors v Davies & Ors [2019] EWHC 3443. Here I want to look at the part of the judgment that deals with the…
PART 36: A SUCCESSFUL LITIGANT CAN BE BULLISH: CLAIMANT BEATS ITS OWN PART 36 OFFER AND THERE WAS NOTHING UNJUST IN THE DEFENDANT PAYING THE PRICE
In Kivells Ltd v Torridge District Council [2019] EWHC 3210 (TCC) the claimant beat its own Part 36 offer (by a fair margin). HHJ Russen QC rejected the defendant’s argument that it would be unjust to apply the normal Part…
CIVIL PROCEDURE AND COSTS: BLOG AND ARTICLES ROUND UP – NOVEMBER 2019
Here we have links to blogs and articles about civil procedure and costs from November 2019. COSTS Costs Barrister Blaming others Costs Barrister The undiscovered country Herbert Smith Freehills Court of Appeal confirms jurisdiction to award claimant interim payment on account of costs…
FIXED COSTS NOT OVERTURNED BY THE TERMS OF AN AMBIGUOUS PART 36 OFFER: COURT OF APPEAL DECISION TODAY
In the judgment today in Ho v Adelekun [2019] EWCA Civ 1988 the Court of Appeal held that fixed costs still applied to a case where an offer of settlement did not expressly refer to costs being fixed. “…parties who…
CLAIMANT BEATS ITS OWN PART 36 OFFER: DEFENDANT PAYS THE PRICE: OFFER BEATEN BY £4,800 LEADS TO DEFENDANT PAYING AN ADDITIONAL £65,000 – & INDEMNITY COSTS, & ADDITIONAL INTEREST…
In Hochtief (UK) Construction Ltd & Anor v Atkins Ltd [2019] EWHC 3028 (TCC) Mrs Justice O’Farrell considered the consequences of a claimant being its own Part 36 offer. The claimant beat its own offer by a small amount but…
CLAIMANT’S LATE ACCEPTANCE OF PART 36 OFFER: UNCERTAINTY OF FUTURE OUTCOME NOT GROUNDS FOR MAKING A DIFFERENT COSTS ORDER
The judgment of Mrs Justice Lambert in Campbell -v- Ministry of Defence [2019] EWHC 2121 (QB) emphasises the difficulties for a claimant who has accepted a Part 36 offer late. The claimant had to bear the usual costs consequences and…
DEFECTIVE PART 36 OFFER MEANT CLAIMANT DID NOT OBTAIN PART 36 BENEFITS: WHY CLAIMANTS SHOULD DRAFT THEIR PART 36 OFFERS CAREFULLY
I am grateful to Simon Fisher from DWF costs for sending me a copy of the decision of District Judge Osborne in Flanagan -v- Royal & Sun Alliance Insurance PLC (16th May 2019). A copy of that case is available…
COURT HAS JURISDICTION TO MAKE AN INTERIM ORDER AS TO COSTS AFTER CLAIMANT HAS ACCEPTED A PART 36 OFFER: COURT OF APPEAL DECISION TODAY
In Global Assets Advisory Services Ltd & Anor v Grandlane Developments Ltd & Ors [2019] EWCA Civ 1764 the Court of Appeal confirmed that the court can make an interim order for costs after a claimant has accepted a Part…
QOCS IN “MIXED “CASES: THE COURT OF APPEAL SPEAKS
In the judgment today in Brown v Commissioner of Police of the Metropolis & Anor [2019] EWCA Civ 1724 the Court of Appeal considered the issue of QOCS in “mixed cases”. The judgment requires careful reading. Generally speaking all personal…
THE BACK TO BASICS SERIES: A RUNNING ACCOUNT: READ THEM ALL HERE
The “Back to Basics” series, as the title suggests, deals with some of the basic elements of civil procedure. It covers everything from applications and bundles to the taking of witness statements. The titles are often prompted by elements…
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…
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