Part 36 costs offer

Mitchells v James (CA The Independent 18 July)

The claimants made a Part 36 offer on the basis that each party bear its own costs. The offer was rejected and when the claimants won at trial they asked for costs on the indemnity basis. The provisions of CPR 36.14 and paragraphs 7.2 and 7.5 of its Practice Direction are inconsistent with the term as to costs being part of a Part 36 offer. Although CPR 36.1(2) provides that nothing in Part 36 prevents a party from making an offer to settle in whatever way he chooses, it did not enable a party to include a term as to costs in a Part 36 offer for the purpose of obtaining an order for costs on the indemnity basis.