Hertel & Anor v Saunders & Anor

Hertel & Anor v Saunders & Anor

A Part 36 offer made in respect of a proposed amendment that has not yet been incorporated into the pleadings is not compliant with CPR Part 36.2(2)(d), and thus does not attract the costs consequences of r.36.10(2). Costs should follow the event, and the defendants, as the successful parties on the abandoned claims, are entitled to their costs.

Parties
Claimant/appellant: Tim-Alexander Gunther Nikolaus Hertel; Claimant/appellant: Artemis International SARL; Defendant/respondent: John Francis Saunders; Defendant/respondent: Liquid Strategies Limited
Jurisdiction
England and Wales
Judgment Date
31 July 2018
Procedural Posture
Civil Appeal / Appeal From High Court (chancery Division) to Court of Appeal
Outcome
appeal dismissed
Legal Topics
CPR Part 36, Costs Orders, Pleadings, Amendment of Claim
Civil Procedure Costs CPR Part 36 Costs Orders Pleadings Amendment of Claim

Case Brief

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Parties

Tim-Alexander Gunther Nikolaus Hertel

Claimant/appellant

Artemis International SARL

Claimant/appellant

John Francis Saunders

Defendant/respondent

Liquid Strategies Limited

Defendant/respondent

Procedural Posture

Civil Appeal / Appeal From High Court (chancery Division) to Court of Appeal

Legal Issues

  1. 1 Whether a Part 36 offer can relate to a proposed but unpleaded amendment to a claim
  2. 2 Whether the offer in question was compliant with CPR Part 36
  3. 3 Who is entitled to costs of abandoned claims when a Part 36 offer is accepted in these circumstances

Ratio Decidendi

A Part 36 offer made in respect of a proposed amendment that has not yet been incorporated into the pleadings is not compliant with CPR Part 36.2(2)(d), and thus does not attract the costs consequences of r.36.10(2). Costs should follow the event, and the defendants, as the successful parties on the abandoned claims, are entitled to their costs.

Court Disposition

appeal dismissed

Orders

  • The appeal is dismissed.
  • The claimants are to pay the defendants’ costs of the abandoned claims.