The recent judgment in Mate v Mate provided a helpful recap on the principles of proprietary estoppel and unjust enrichment, and the subsequent costs judgment has likewise made for a good refresher on Part 36 offers. Certainly the facts represent (to justify the comparison in this post's title) the legal equivalent of Indiana Jones sliding beneath a rapidly closing stone door but retrieving his hat with a moment to spare.
The potted background is that 21 days before trial, the claimant made a Part 36 offer to the second and third defendant for £650,000.00 in full and final settlement of the claim. The 21-day period required for a valid Part 36 offer was slimly met, the final day of this period being the day of judicial pre-reading. This constituted the first such incident of Indiana Jones' style thin margins. The offer was not accepted by the respective defendants, and in the second such display of Jonesesque dramatics, the Claimant went on to beat her offer by a modest £2,000.00 at trial. So kick in the provisions of CPR Part 36 and some interesting debate about timings, serving Part 36 offers with multiple defendants, and costs where the Claimant is only partially successful.
The judgment is well worth a read, and whilst not in itself ground-breaking, key reminders (or warnings) to practitioners stand out as being:
- Making a final well pitched Part 36 offer even if very close to trial should always be considered if appropriate. Even though the full benefits of Part 36 which would be obtained through an earlier offer may not be realised, whether the offer is beaten by a penny or a pound, even a late offer still brings (subject always to judicial discretion) the potential to recover material additional sums under CPR 36.17(4)(d), which in this case yielded the Claimant a further £57,625.00.
- Under Part 36, a Claimant (as compared to the position with Defendants which involves separate rules) is permitted to serve a Part 36 on only some of the defendants without the offer being invalid, if the offer is in ‘full and final settlement’ then seeking a contribution from the other parties after acceptance of the offer is a matter for the defendants.
- The Part 36 offer was only sent by email on 5:22pm on a Friday and this was accepted by the Court (although there was no judicial consideration in Mate of the validity of service in this manner) as being served on the Monday. Email service of a Part 36 offer is a point that was also recently considered in the costs judgment of the case of Coldunell Ltd v Hotel Management International Ltd l [2022] EWHC 3084 (TCC) where likewise the offer was only sent by email. In Coldunell the Judge considered that on the facts of that case email service was acceptable for service, but it is worth remembering that a Part 36 offer is a document and so the starting position (and to avoid arguments on this point) is that it needs formal service as per CPR 6, so better to go full ‘belt and braces’ than to risk having to make any anxious submissions.
As with all costs matters the discretion of the Court is wide so as to achieve a just outcome, but endeavouring where possible to maximise the possible benefits available under the self-contained code of Part 36 is something any practitioner should seek to take advantage of, if not only to encourage parties to settle, then at the least to provide some solid costs arguments if required.
An obvious final point to make (and perhaps one for an ideal world) is do try to make your offer with some time to spare, chances are you aren’t as lucky as Indiana Jones, and no one wants to be the person caught by that rolling boulder…
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