When is a Part 36 offer on a counterclaim not a claimant's Part 36 offer for CPR 36.17 costs consequences? (Van Oord UK v Allseas UK)

Article summary

Dispute Resolution analysis: Mr Justice Coulson has given judgment on whether a Part 36 offer said to take into account any counterclaim that the defendant might have (ie, an, as yet unpleaded counterclaim) was a defendant’s Part 36 offer or a claimant’s Part 36 offer. The difference is critical since the consequences of an offeror ‘beating’ their Part 36 offer are clearly different, depending on whether the Part 36 offer is a defendant Part 36 offer (costs consequences in CPR 36.17(3)) or a claimant Part 36 offer (costs consequences in CPR 36.17(4)). Coulson J specifically said that ‘the fact that a defendant with a counterclaim is treated as a claimant in accordance with CPR 36.2(3) does not mean that its offer is automatically to be regarded as a claimant’s offer: that must always depend on its terms’. In the instant case (and by noting all...