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Part 36 offer to accept 95 per cent liability in open and shut case valid (Jockey Club v Willmott Dixon)

Published on: 09 February 2016
Published by: LexisPSL
  • Part 36 offer to accept 95 per cent liability in open and shut case valid (Jockey Club v Willmott Dixon)
  • Practical implications
  • Did the 95% offer render it invalid under CPR 36?
  • Would it be unjust to award the Part 36 costs consequences for non-acceptance of the claimant's 95% offer?
  • Why did the judge decline to consider the further Part 36 costs consequences as to interest at this stage?
  • Court details

Article summary

Dispute Resolution analysis: The High Court, citing with approval Henderson J in Huck and the Court of Appeal in AB v CD has held valid a claimant’s Part 36 offer to settle liability on the basis of the defendant paying 95% of the damages to be assessed. This was an ‘open and shut’ case as to liability and, as such, the offer did not reflect a possible outcome (liability would either be found to be nil or 100%, not somewhere in between). However, while an offer to accept 98% might have been hard to defend, the 5% reduction the claimant offered probably represented a reduction it was prepared to accept in order to achieve a certain and early outcome, rather than an assessment of the risk of losing. This did not prevent it being a valid Part 36 offer. Indemnity costs were therefore awarded, however, only as from four months after expiry of the relevant period on the basis that the defendant needed such time in order to be able to properly assess the merits of accepting or rejecting the offer (citing CPR 36.17(5)(c)). The judge postponed determining the applicable rate of interest under CPR 36.17(4) given that the damages had yet to be assessed and the parties’ conduct in such respect was as yet unknown. or take a trial to read the full analysis.

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