PART 36

Gamal v Synergy Lifestyle Ltd [2018] EWCA

This case gives another strong indication that Part 36 offers must be clear.

The Defendant made a Part 36 offer in the sum of £15,000 and shortly thereafter made a voluntary payment of £10,000. The Judge found that the voluntary payment, which was made after the date of the Part 36 offer, had the consequence of reducing the Part 36 offer by that sum. The Defendant did not make it clear that the voluntary payment was on account of costs and the Judge commented that the presumption of law is that the payment made was on account of the earlier Part 36 offer.  The voluntary payment would therefore reduce the Part 36 offer unless it was made clear that it was not intended to do so.  Had the Defendant noted this, they would have beaten their Part 36 offer.

A costly mistake made due to an unclear Part 36 offer.

Ballard v Sussex Partnership NHS [2018] EWHC

This case raised some important points about withdrawn Part 36 offers.

In January 2016 the Defendant made a Part 36 offer of £50,000. This offer was withdrawn by the Defendant in February 2017.  The Defendant then put forward a further Part 36 offer of £30,000.  At trial the Claimant was awarded damages of £23,315.13.  At first instance, following strong arguments made by the Defendant, the Judge ordered that the Claimant pay the Defendant’s costs from the date of expiry of the withdrawn offer. However, this decision was overturned due to the Defendant’s second offer stipulating that they would be liable for the Claimant’s costs up to 1st March 2017.  Accordingly, the Appeal Judge ordered the Defendant pay the Claimant’s costs up to 1st March 2017.

What makes for interesting reading is that had the Defendant not stipulated that they would pay costs up to 1st March 2017 then the Claimant may have had to pay costs from the date of the withdrawn offer.  Withdrawn offers therefore continue to be relevant for the purposes of costs proceedings.

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