Claimant did not beat his Part 36 offer

Reed v Edmed QBD TLR 13 December

Prior to a hearing on the question of liability and causation as a preliminary issue, the claimant offered to settle on the basis of 50/50. At the hearing of the preliminary issue, the judge, having found that the claimant had been equally responsible for the accident with the defendant, awarded her 50% of her damages. CPR rule 36.21 provides for costs on the indemnity basis and enhanced interest where a claimant does better than that proposed in the Part 36 offer. The rule does not therefore apply where the offer is equalled. However, neither counsel was able to give a convincing explanation as to why rule 36.21 should have been drafted in that way and the judge could see no reason why a claimant who sensibly proposed settlement should be in an any less favourable position than she would be under rule 36.21, fairly applied, simply because the court found that the offer was ‘spot on’. CPR rule 36.10 was a mandatory provision to take any Part 36 offer into account when making an order as to costs and rule 44.3 retained the court’s wide discretion as to costs. As a matter of principle, where, in a relatively uncomplicated claim for damages for personal injury and consequential losses such as this, the claimant made a valid Part 36 offer, or other admissible offer to settle an issue of liability at a given proportion of his claim, and the court gave judgment for that amount, the claimant should be entitled to the benefit of an award of indemnity costs from the time of the expiry of the offer, just as she would if rule 36.21 had applied to the matter. Accordingly, the judge awarded her costs on the indemnity basis and, for the same reason, enhanced interest on those costs.