Absent unreasonable behaviour, no indemnity costs for beaten, but withdrawn, Part 36 offer (Gulati v MGN)

Article summary

Dispute Resolution analysis: Mann J has refused to award indemnity costs by analogy with CPR 36 where the claimant beat their Part 36 offer which they had withdrawn. Although the defendant’s conduct had not been impressive, it was a series of individual procedural matters which, even taken cumulatively, did not make the conduct, of itself, so unreasonable as to justify the award of indemnity costs. Whilst ‘the court has jurisdiction to award indemnity costs for serious unreasonable behaviour, and in other limited circumstances, but to award them on the basis that a claimant’s offer has been beaten by the claimant (absent compliance with the Part 36 regime) would be new’. This would amount to by-passing the Part 36 regime, a step which would be not only novel (not a bar in itself) but contrary to the thrust of Court of Appeal authority.