Inadvertent disclosure of Part 36 offer

Garratt v Saxby [2004] All ER (D) 302

CPR rule 52.12(1) prohibits in mandatory terms disclosure of a Part 36 offer or payment to any judge hearing an appeal until all issues have been determined. The claimant’s claim for damages was heard by a judge in the county court and, on his appeal to a High Court judge, his solicitors inadvertently included in the appeal bundle references to the defendant’s Part 36 offer. The claimants appeal succeeded, subject to a finding of 40% contributory negligence. The Court of Appeal dismissed the defendant’s appeal on the grounds that the judge had made no reference to the offer, which she would doubtless have had done had she seen it, and therefore the defendant had not shown there to have been a ‘serious procedural irregularity’ under CPR rule 52.1(3). Accordingly, the interests of fairness and justice did not require the appeal to be reheard before a different judge. If the judge had been aware of the offer she would have had to decide whether or not to recuse herself, and in making this decision would have been entitled to take into account the additional time, cost and difficulty involved if the hearing were to be aborted.