Kerry Underwood

CLAIMANTS’ PART 36 OFFERS: SIX NEW KEY DECISIONS

with 3 comments


sdsThere have been six very recent decisions, five supportive of claimants and one not, and dealing with matters of great importance to civil litigators.

 

The first decision confirms the law as set out in my blog – Part 36: Does a Claimant get Indemnity Costs on Late Acceptance?, that is that the claimant does indeed get indemnity costs in those circumstances. This is a very important decision.

 

That decision follows on from Broadhurst v Tan as does the second decision, concerning provisional assessment, where the court held that the cap of £1,500.00 plus VAT and court fees on provisional assessment is overridden by Part 36.

 

That decision also follows my view in the same blog post.

 

The third and fourth decisions deal with the situation where there is an appeal and the fifth decision deals with the 10% Part 36 uplift on the interest element of any award.

 

Overall these decisions are correct, helpful and give expression to the will of Parliament in relation to Part 36 offers, especially those made by claimants.

 

These decisions, along with Broadhurst v Tan and other recent decisions – dealt with in my blog post – Part 36 – Important Recent Cases – have gone a very long way to resolve the problems caused by earlier courts failing to realize that indemnity costs for successful Part 36 claimants are the mirror image of defendants getting costs when a claimant wins a claim but fails to beat a defendant’s Part 36 offer.

 

  1. INDEMNITY COSTS PAYABLE BY LATE ACCEPTING DEFENDANT

 

In Sutherland v Khan, Kingston-Upon-Hull County Court, Case number A81YM424

 

District Judge Besford, Regional Costs Judge, held that a late accepting defendant of a claimant’s Part 36 offer was liable to pay indemnity costs from the date of expiry of the time for accepting the offer.

 

This was a fixed costs case. Broadhurst v Tan and Taylor v Smith [2016] EWCA Civ 94 (23 February 2016) establishes that a successful Part 36 claimant, that is one who matches or beats her or his own offer, is entitled to indemnity costs on an open basis, that is that those indemnity costs are not limited to a sum equal to fixed costs.

 

I deal with the Broadhurst case in my blog post – Claimant’s Part 36 Offer Overrides Fixed Costs.

 

The issue remained, and as this is a first instance decision, albeit by a highly respected Regional Costs Judge, remains, whether in the absence of judgment being entered a late accepting defendant is liable to pay indemnity costs in the way that a late accepting claimant has to pay costs from the date of expiry of time for acceptance.

 

I deal with this whole subject in detail in my post – Part 36: Does a Claimant get Indemnity Costs on Late Acceptance?  where I expressed the view that a claimant is indeed entitled to indemnity costs on late acceptance by a defendant.

 

Here the judge said, correctly:-

 

“Unfortunately, part 36, whilst dealing with situations where the claimant accepts out of time a defendant’s offer, would appear to be silent as to a defendant accepting a claimant’s offers out of time or prior to trial. The nearest analogy is part 36.17, but it is accepted that part 36.17 can only apply where a judgment has been entered. That situation is not applicable here.”

 

The judge declined to follow the High Court decision in Fitzpatrick Contractors Ltd v Tyco

Fire v Integrated Solutions (UK) Ltd [2010] 2 Costs LR 115 on the ground that it is “perhaps a statement of the law as it was in 2009, but not necessarily the way the law in respect of Part 36 is being interpreted in 2016.”

 

In Fitzpatrick the court was referred to Petrotrade Inc v Texaco Ltd [2000] All ER (D) 724.

 

In the key section of the judgment DJ Besford said:-

 

“18. In addition, in the course of submissions I was referred to Petrotrade Inc v Texaco Ltd [2000] All ER (D) 724, which is mentioned by Coulson J in Fitzpatrick. Coulson J dealt with these cases at paragraph 22: “I accept Mr Thomas’s submissions that the other cases relied upon by Fitzpatrick, namely Petrotrade, Hook and Read, do not offer very much assistance to the central question here, which is whether a rebuttable presumption in favour of the indemnity costs, taken from a rule dealing with a situation following a trial, where the offer has not been accepted, should be inferred into a rule dealing with the position prior to trial, where the offer has been accepted. I do not accept that the present situation is analogous to those cases. In all three of them, the courts were endeavouring to apply the words of the old CPR 36.21, in a commonsense way, to achieve a just and sensible result and to prevent injustice; they all arose after a trial on the merits, (either on a summary or a full basis). In contrast, I conclude that the replacement of old CPR 36.21 – the new CPR 36.14 – does not apply to the present case, because there has been a settlement, and it has occurred before the trial. The claimant has therefore been spared the cost, disruption and stress of the trial.”

 

“19. The interpretation of these cases put forward by Coulson J is not, with respect how I read the more recent cases coming forth from higher courts. My understanding is, as I have alluded to, that there has been a tightening up as to the ‘carrot and stick effect’ of part 36 offers. To my mind, notwithstanding the comments of Coulson J, if there was no incentive or penalty there would be little point in a defendant accepting offers early doors, as opposed to waiting immediately prior to trial. It also seems to me unsatisfactory that there should be penalties flowing if you do not beat an offer at trial, whereas if you settle before trial there are none. This position does not sit comfortably with the overriding objective of saving expense. In my view, I think that Fitzpatrick is perhaps a statement of the law as it was in 2009, but not necessarily the way the law in respect of part 36 is being interpreted in 2016.”

 

“20. In conclusion, I do not find that the court has to find that the defendant has, in some way been guilty of inappropriate behaviour or conduct capable of censor before I can consider making an order for costs on an indemnity basis.”

 

The judge then set out the relevant provisions of Part 36 and said:-

 

“27. It follows that for the court to deny the consequences that flow from accepting a part 36 out of time the court has to make pretty exceptional findings and there has to be some very good reason as to why it is unjust not to make the usual order. The very fact that the claimant obtains a ‘windfall’, most certainly does not constitute unjustness, under part 36.17.”

 

Comment

 

Unsurprisingly I always agree with decisions that follow my blog posts. Having said that this is a sensible, pragmatic and bold decision giving effect to the will of Parliament.

 

It is a shame that the Rules Committee cannot rise above nursery class English.

 

I am very grateful to John McQuater for his help in relation to this piece and for bringing it to my attention and, most of all, for being the solicitor who pushed this issue and won.

 

  1. PROVISIONAL ASSESSMENT

 

In Lowin v W Portsmouth and Co Ltd [2016] EWHC 2301 (QB)

 

the Queen’s Bench Division of the High Court held that where a receiving party matched or beat its own Part 36 offer in provisional assessment proceedings it was entitled to costs on the indemnity basis under CPR 36.17(4) which overrode the cap of £1,500.00 plus VAT and court fees contained in CPR 47.15(5).

 

The decision thus followed the Court of Appeal’s reasoning in Broadhurst v Tan and Taylor v Smith [2016] EWCA Civ 94 (23 February 2016) where it ruled that a claimant matching or beating its own Part 36 offer received indemnity costs, and not fixed costs and that those indemnity costs were to be assessed on the open basis and not by reference to fixed costs.

 

The argument here, successful in front of the original master but not on appeal, was apparently the same – namely that even an order that costs should be assessed on the indemnity basis would be subject to the £1,500.00 cap.

 

The paying party here had submitted that there is a difference in principle between fixed costs as dealt with in Broadhurst v Tan and capped costs.

 

The logic of this argument is that in fixed costs, costs are just that: fixed and therefore unless costs on the indemnity basis could exceed fixed costs an order for indemnity costs would be meaningless, and indeed arguably as far as costs are concerned, a claimant’s Part 36 offer would be meaningless.

 

However with capped costs it would be possible for costs on the standard basis to be say, £750.00 but, say £1,250.00 on the indemnity basis and therefore an indemnity costs order would still mean something in practice and would still incentivize a receiving party to make a Part 36 offer.

 

Whatever the original status of the parties, that is claimant or defendant, in provisional assessment proceedings for all intents and purposes the receiving party is the claimant.

 

Thus the argument was that where the costs cap applied, indemnity costs could be assessed and awarded but would be subject to the cap – see Nizami v Butt [2006] EWHC 159 (QB).

 

Here the High Court rejected that approach.

 

CPR 47.20(4) considered how Part 36 should apply to Part 47 and it applies to the costs of a detailed assessment, with modifications.
There was a conflict between CPR 47.15(5) and Part 36 because CPR 47.15(5) potentially derogated from the entitlement to costs on an indemnity basis under Part 36.

 

Here the court said that the correct view was that taken by the Court of Appeal in Broadhurst, namely that CPR 36.14 continued to have “full force and effect”.

 

Had the Draftsman of the Rules Committee wished Part 36 to be modified so that the cap would remain then that would have been stated.

 

The High Court further stated that the dislodging of the cap would incentivize parties to accept reasonable costs offers because if they did not do so they would be at risk of substantial costs under Part 36.

 

I deal with this whole area in detail in my post – Claimant’s Part 36 Offer Overrides Fixed Costs.

 

In that post I said of the Broadhurst v Tan decision:-

 

“The same principle appears to apply to provisional assessment and thus a receiving party who matches or beats its own offer will get indemnity costs.”

 

Comment

 

Unsurprisingly I always agree with decisions that follow my blog posts. Having said that this is a sensible, pragmatic decision giving effect to the will of Parliament.

 

It is a shame that the Rules Committee cannot rise above nursery class English.

 

  1. APPEAL

 

In Pawar v JSD Haulage Ltd [2016] EWCA Civ 551

 

the Court of Appeal considered the effect of two Part 36 offers made by the defendant in the original proceedings where the amount of damages was increased on appeal to a figure above the first offer but below the second offer.

 

On 5 February 2014 the defendant made a Part 36 offer of £80,000.00. It was refused. On 1 May 2014 a further offer in the sum of £129,332.00 was made and that too was refused and neither offer was beaten at trial.

 

Consequently the trial court made the usual order that the defendant pay the costs to the date of expiry of the first unbeaten offer and the claimant pay the costs thereafter. The Court of Appeal allowed the substantive appeal in part and increased the damages to a figure above the first offer, but below the second offer.

 

It was common ground that that costs order had to be amended as the claimant had now beaten the first offer.

 

The Court of Appeal allowed the claimant its costs up to expiry of the period of acceptance of the second offer and ordered the claimant to pay the defendant’s first instance costs thereafter.

 

So far, so clear.

 

The issue then arose as to the costs of the appeal. It was common ground that an unsuccessful party will generally be ordered to pay the successful party’s costs – see CPR 44.2(2)(a).

 

The claimant said that his damages had been increased by the Court of Appeal and so he should get the costs of that appeal.

 

The defendant conceded that rules governing Part 36 offers apply to the proceedings in which they are made, not the costs of any appeal, but said that pursuant to CPR 44.2(4)(c) the Court of Appeal should consider the second offer when assessing who is the real winner on appeal.

 

If the claimant had accepted the sum in the second Part 36 offer he would have been better off by some margin than he was following the Court of Appeal’s ruling as the increased sum awarded by that court still fell well short of the amount in the second Part 36 offer.

 

The defendant had made no offer once appeal proceedings had been launched, even though the trial court had awarded a sum significantly below the sum that the defendant had previously considered reasonable.

 

Although the amount recovered on appeal fell short of the second offer by some margin that offer was not open to the claimant once the first instance proceedings had concluded.

 

In order to improve his position the claimant had to pursue the appeal, for which he had permission on all grounds, to its conclusion.

 

Consequently the claimant was entitled to the costs of the appeal.

 

Comment

 

A correct and sensible decision.

 

Lawyers should always review Part 36 offers if a matter is appealed as any Part 36 offer made in the previous proceedings falls away at the end of those proceedings.

 

  1. CLAIMANT’S PART 36 OFFER DURING APPEAL

 

In Summers v Bundy [2016] EWCA Civ 126

 

the Court of Appeal held that the claimant was entitled to a 10% uplift on general damages under the principles set out in

 

Simmons v Castle [2012] EWCA Civ 1039 and [2012] EWCA Civ 1288

 

There the court held that this uplift is compulsory and not a matter for judicial discretion – see my post 10% Uplift in all Cases Except where there is a Recoverable Success Fee.

 

This is of course a different 10% uplift from the one that is payable on all damages where a claimant matches or beats its own Part 36 offer.

 

This case involved the interplay between the two and also what happens when a claimant makes a Part 36 offer during appeal proceedings and matches or beats it.

 

Here, in relation to the appeal proceedings, the claimant made a Part 36 offer to accept an additional 9% Simmons v Castle general damages uplift.

 

As stated above the Court of Appeal held that there was a mandatory 10% uplift on general damages and ordered accordingly.

 

Thus the claimant had beaten at the appeal its own Part 36 offer made in the course of those appeal proceedings.

 

Consequently the court ordered the defendant to pay the claimant’s costs on an indemnity basis from the end of the relevant period, that is expiry of the time for accepting the Part 36 offer.

 

In relation to enhanced interest and a further 10% Part 36 uplift on the Simmons v Castle 10% uplift the Court of Appeal accepted that it had the power to make that order but exercised its discretion not to on the basis, contained within Part 36 itself, that it would be unjust to do so.

 

Comment

 

This reinforces the point made in Pawar v JSD Haulage Ltd [2016] EWCA Civ 551see above.

 

Lawyers should always review a Part 36 offer if a matter is appealed. This is for two reasons. Any Part 36 offer made in the previous proceedings falls away at the end of those proceedings. Secondly, as here, a party should look carefully at what it seeks to achieve on appeal and make a well-pitched Part 36 offer accordingly.

 

My only slight criticism of the court here is that in my view it should have awarded the 10% Part 36 uplift on the 10% Simmons v Castle uplift.

 

In reality the Simmons v Castle 10% is not an uplift at all but rather an uprating of general damages in the same way as the Judicial College uprates general damages and it is incorporated into the full general damages figure and should not be regarded as a bonus itself. Thus in my view the Court of Appeal should have awarded the 10% Part 36 uplift on the additional sum achieved by the claimant on appeal.

 

  1. 10% UPLIFT ON INTEREST

 

In Bolt Burdon Solicitors v Tariq & Others [2016] EWHC 1507 (QB) (22 June 2016)

 

the Queen’s Bench Division of the High Court held that where a claimant matches or beats its own Part 36 offer it is entitled to the 10% damages uplift on contractual interest as well as on the principal sum.

 

The additional amount was calculated by applying the prescribed percentage “to an amount which is… the sum awarded to the claimant by the court.”

 

Whatever the position may be in respect of interest awarded by the court a as matter of discretion, for example under Section 35A of the Senior Courts Act 1981, the court here had awarded interest at 8% as part of the sum to which the claimant was contractually entitled.

 

That was to be regarded as part of the sum awarded “as a specific sum” and had it been the intention always to exclude interest from the provisions relating to the 10% uplift then it would have been simple for the rule to have said so.

 

The court held that it was not unjust to order the defendant to pay the uplift on the interest in this case as the claimant had not made a claim for enhanced interest on the damages under CPR 36.17(4) and the parties had agreed the interest rate in the contract.

 

The provision for an uplift when a claimant matches or beats its Part 36 offer was clearly designed as a penal sanction to mark a defendant’s failure to accept a Part 36 offer when he should have done and to award the claimant for a commendable attempt to settle the case.

 

As the court said here:-

 

“10. The “additional amount” is, in effect, a further head of damages, and is intended to provide a reward of real value to a claimant who makes a successful claimant’s Part 36 offer.”

 

The court also pointed out that in CPR 36.17(4)(a), which deals with enhanced interest of up to 10% above base rate on any award where a claimant matches or beats its own Part 36 offer, the rule specifically states that that enhanced interest shall not be payable on any interest element of the award.

 

There is no such exclusion in CPR 36.17(4)(d) in relation to the 10% uplift on the award.

 

As the court said:-

 

“As a matter of statutory construction, the inclusion of the words “excluding interest” in one part of the Rule but the omission of the same words in another part, is a strong indication that there was intended to be a difference.” (Paragraph 19).

 

The High Court left open the issue of whether the 10% uplift applies to interest awarded by the court, rather than contractual interest.

 

The court also left open the issue of whether the 10% uplift applies to enhanced interest on any award. The potential effect of this is that under CPR 36.17(4)(a) a successful Part 36 claimant can get enhanced interest of 10% above base rate on the principal sum, but not on interest, but could then get a further 10% uplift on that sum under CPR 36.17(4)(d), thus achieving an overall rate of 11%, an approach rejected in

 

Watchorn v Jupiter Industries Ltd [2014] EWHC 3003 (Ch)

 

Here there was no claim for enhanced interest under CPR 36.17(4)(a) and so the court did not have to consider that matter and no issue of it being unjust to award the 10% uplift on the maximum rate of enhanced interest arose.

 

The court here suggested, correctly in my view, that Watchorn was wrongly decided as the judge appeared not to have considered the significance of the specific mention “excluding interest in sub-paragraph (4)(a), in contrast of the absence of any such mention of those words in sub-paragraph (4)(d).”

 

Comment

 

Yet another sensible, pragmatic decision on claimants’ Part 36 offers.

 

6. CAN A DEFENDANT BE BETTER OFF PAYING MORE THAN THE CLAIMANT WANTS?

 

A case to do your head in

 

In Purrunsing v A’Court & Co (a firm) and another [2016] EWHC 1528 (Ch) (1 July 2016)

 

the High Court held that in considering whether a claimant had matched or beaten its own Part 36 offer the court should calculate interest to the expiry of the Relevant Period, generally 21 days after the Part 36 offer was made.

 

To do otherwise would mean that whether or not the claimant had matched or beaten its own offer would depend upon the length of time between the offer and trial.

 

Here the claimant had made a Part 36 offer to settle the claim for £516,000.00 inclusive of interest and that offer was made on 20 May 2015.

 

Following the trial the claimant recovered £470,000.00 together with interest at the rate of 2.5% above base rate, which down to the date of the order of 14 April 2016, was £48.983.01 giving a total of £518,983.01.
The claimant submitted that as he had recovered a sum in excess of his offer he was entitled to, among other things, indemnity costs for the period from the expiry of the relevant period, that is 21 days after the Part 36 offer was made on 20 May 2015, that is from 10 June 2015.

 

The paying party submitted that it was necessary to deduct the interest awarded in relation to the period after expiry of the relevant period, that is in this case after 20 May 2015.

 

If that was done then the total substantive damages and interest to 10 June 2015 resulted in a figure less than the claimant’s offer and thus he had failed to beat or match his Part 36 offer and should not get the various uplifts, including indemnity costs. The resultant figure became £507,046.30, which was clearly below the claimant’s Part 36 offer.

 

The judge, correctly in my view, relied on CPR 36.5(4) which reads:-

 

“(4)    A Part 36 offer which offers to pay or offers to accept a sum of money will be treated as inclusive of all interest until—

 

  • the date on which the period specified under rule 36.5(1)(c) expires; or

 

  • if rule 36.5(2) applies, a date 21 days after the date the offer was made.”

 

Comment

 

In my view this decision is correct but the rule itself, as with much of Part 36, throws up other problems.

 

Let us suppose that the claimant has called the matter exactly right and offers to accept £500,000.00 and that is precisely the sum that will be awarded for substantive damages and interest to the end of the relevant period and thus the claimant will have matched its own offer and is entitled to the extra.

 

Six months pass.

 

The claimant can either withdraw that first offer on the basis that the additional interest accrued in those six months means that it is now too low but if the claimant does that then the penalties only run from any later, higher, offer.

 

If the claimant does nothing and does not withdraw the offer then it is capable of acceptance at any time and the claimant stands to get the additional benefits, including additional interest, indemnity costs and a 10% uplift on damages.

 

However the defendant is then off the hook for that additional interest as they are free to accept the offer made with the calculation of interest up to the expiry of the relevant period six months earlier.

 

Thus the defendant avoids six months interest. That can be a significant sum even now during a period of very low interest rates. As and when interest rates rise it can become a very significant sum indeed.
Furthermore it is not yet settled law that a late accepting defendant, as compared with a defendant who has had judgment entered against it, is liable for indemnity costs for the period after expiry of the relevant period.

 

No superior court has ruled on that point.

 

In Sutherland v Khan, Kingston-Upon-Hull County Court, Case number A81YM424

 

District Judge Besford, Regional Costs Judge, held that a late accepting defendant of a claimant’s Part 36 offer was liable to pay indemnity costs from the date of expiry of the time for accepting the offer.

 

In my view that decision is correct but it is still only a first instance decision, albeit by a highly respected Regional Costs Judge.

 

I deal with that case in my blog – Claimants’ Part 36 Offers: Five New Key Decisions and the whole issue of what happens when a defendant accepts late in my blog – Part 36: Does a Claimant get Indemnity Costs on Late Acceptance?

 

The decision here in the Purrunsing case should give strong support to the public policy argument that where a defendant accepts a Part 36 offer late, then the claimant should always get indemnity costs and the other uplifts.

 

The rule throws up further problems. Let us take the scenario above. Let us assume that the extra interest, that is from the end of the relevant period until today, totals £10,000.00.
Clearly a fresh offer could be made with the original offer being withdrawn which would mean that the defendant would have to pay an additional £10,000.00 in order to settle the matter by way of acceptance of that Part 36 offer. However if the defendant did that then clearly there would be no uplift on anything as the offer would have been accepted within time, that is within the relevant period.

 

However if Sutherland v Khan is right then if the defendant accepts the original offer it will be liable for indemnity costs from expiry of the relevant period as well as a 10% uplift on damages and interest on costs and damages etc.

 

Thus that will be a mathematical calculation as to which suits the claimant best. I refer to it as a mathematical calculation but of course the amount of costs that will be allowed by the court is speculation rather than calculation.

 

In fact a claimant may be best served by leaving the original lower offer unimproved as indemnity costs and a 10% uplift on damages will normally be a much higher figure than the further interest from the date of expiry of the relevant period.

 

Of course a claimant can make a fresh, higher, Part 36 offer and leave the original one on the table.

 

Bizarre as it may seem, for the same reasons set out in the last paragraph, a defendant will normally be better accepting that higher offer in time and thus avoiding the uplifts contained in CPR 36.17(4) including indemnity costs and 10% on damages etc.

 

I must confess to not understanding whether that succeeds in avoiding those consequences or not.

 

CPR 36.17(7) states:-

 

“(7)    Paragraphs (3) and (4) do not apply to a Part 36 offer—

 

  • which has been withdrawn;

 

  • which has been changed so that its terms are less advantageous to the offeree where the offeree has beaten the less advantageous offer;”

 

Clearly the offer would not have been withdrawn and therefore CPR 36.17(7) (a) does not apply.

 

However if a claimant offers to accept £500,000.00 and then says that it will take £510,000.00 clearly that offer has been changed so that its terms are less advantageous to the offeree – that is the paying party – as the offeree will now have to pay more.

 

However the offeree, in accepting that second less advantageous offer, has not “beaten the less advantageous offer” – how can an accepting party ever “beat” anything?

 

In other words if a defendant accepts a claimant’s Part 36 offer of £510,000.00, and the first offer of £500,000.00 is on the table, then as the amount paid is greater than that first offer presumably the defendant does have to pay the uplift on damages and indemnity costs and so on.

 

However that is all predicated on the basis that a late accepting defendant has to pay anything additional, as stated earlier we await a superior court decision on that point.

 

It probably never occurred to anyone that a defendant faced with different still extant claimants’ Part 36 offers who chose to accept the higher one.

 

What happens in the above scenario if the defendant, unsure of whether acceptance of £510,000.00 will trigger indemnity costs etc. from the first offer of £500,000.00, makes its own Part 36 offer in the sum of £515,000.00, which is then accepted by the claimant?

 

Thus the matter is resolved by a claimant accepting within time a defendant’s Part 36 offer.

 

Presumably then no additional interest, indemnity costs or uplift are payable even though the amount changing hands is higher than both of the claimant’s Part 36 offers still on the table.

 

Again presumably those wise J people sitting on our beloved Rules Committee did not envisage a defendant making a Part 36 offer higher than a claimant’s Part 36 offer which was still available for acceptance.

 

I have said before that Part 36 would challenge Einstein. It certainly challenges me.

 

Any thoughts from you genuinely wise people out there?

 

Please see my related blogs:-

 

PART 36 LIABILITY OFFERS ON DAY ONE

PART 36 & ISSUE BASED ORDERS

PART 36: THE DRY SALVAGES: UNIFIED

CLAIMANT’S PART 36 OFFER OVERRIDES FIXED COSTS

10% UPLIFT IN ALL CASES EXCEPT WHERE THERE IS A RECOVERABLE SUCCESS FEE

PART 36: DOES A CLAIMANT GET INDEMNITY COSTS ON LATE ACCEPTANCE?

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Written by kerryunderwood

June 30, 2016 at 3:30 pm

Posted in Uncategorized

3 Responses

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  1. […] deal with that case in my blog – Claimants’ Part 36 Offers: Five New Key Decisions and the whole issue of what happens when a defendant accepts late in my blog – Part 36: Does […]

  2. […] deal with that case in my blog – Claimants’ Part 36 Offers: Five New Key Decisions and the whole issue of what happens when a defendant accepts late in my blog – Part 36: Does […]

  3. Dear Kerry

    I am a regular reader of your blog and attend your training courses regularly and value your insight and knowledge

    I wonder if you can help.I made a part 36 offer on causation in a low velocity impact claim-namely 95/5 in claimants favour that if there was any settlement of the claim or judgement establishing causation in the claimants favour equal to or above 95/5 then all the usual remedies would follow.
    The defendants remained belligerent throughout and would conceded nothing.Case was listed was for trial.
    I then made a monetary part 36 offer which the defendant accepted within time.I am arguing by implication they are also accepting my causation part 36 offer out of time and as such I am entitled to fixed costs,10% uplift on damages,interest and costs to be assessed if not agreed from expiry of 21 days from causation offer etc.
    Can the acceptance of later monetary part 36 offer imply acceptance of an earlier liability/causation one?May be a long shot but I would like to give it a run if it is likely to stand any prospect of success.
    Regards

    Phil Watters

    northwalesinjurylawyer

    April 18, 2017 at 7:34 pm


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