Part 36 offer to settle part of a claim proposed by amendment not valid (Hertel v Saunders)

Article summary

Dispute Resolution analysis: The High Court has considered whether a defendant’s stated Part 36 offer made in relation to part of a claim set out as a proposed amendment (to which the defendants had neither consented nor objected) was a valid Part 36 offer within the meaning of the old r 36.2 in force prior to 6 April 2015. The court decided not. This was so even though, at an earlier determination, the defendants had willingly accepted that their offer was a Part 36 offer. The defendants revised their position when it was apparent that, by treating the offer as a valid Part 36 offer, the court would constrain the costs consequences of the claimants accepting the offer to the then r 36.10(2) costs which were perceived as less favourable to the defendants than a determination outside of Part 36. The judgment demonstrates some of the complexities that can arise in dealing with Part...