Epsom College v Pierse Contracting Southern Ltd [2011] EWCA Civ 1449 (13 December 2011)

Epsom College v Pierse Contracting Southern Ltd [2011] EWCA Civ 1449 (13 December 2011)

The first Part 36 offer made by the claimant was a valid offer under Part 36. Although the judge erred in awarding Part 36 consequences based on the second (withdrawn) offer, it was appropriate to award indemnity costs and enhanced interest from the date the pipe was produced and the contractor was in a position to evaluate the claim properly. The claimant's conduct did not justify a reduction to 60% of costs. The costs of the December site inspection application were properly included as costs in the case.

Citation
[2011] EWCA Civ 1449
Parties
Claimant / Respondent: Epsom College (A Private Company Limited by Guarantee); Defendant / Appellant: Pierse Contracting Southern Limited (In Liquidation, formerly Bisley Construction Limited)
Jurisdiction
England and Wales
Judgment Date
13 December 2011
Procedural Posture
Appeal (civil) / Court of Appeal Judgment on Costs Following Trial Judgment in Queen's Bench Division
Outcome
Appeal dismissed in substance; costs order varied to award indemnity costs and enhanced interest from 1 November 2010 (after production of the pipe) rather than from the expiry of the second Part 36 offer.
Legal Topics
Costs, Part 36 Offers, Indemnity Costs, Interest on Judgment, Conduct of Litigation
Civil Procedure Contract Law Costs Part 36 Offers Indemnity Costs Interest on Judgment Conduct of Litigation

Case Brief

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Parties

Epsom College (A Private Company Limited by Guarantee)

Claimant / Respondent

Pierse Contracting Southern Limited (In Liquidation, formerly Bisley Construction Limited)

Defendant / Appellant

Procedural Posture

Appeal (civil) / Court of Appeal Judgment on Costs Following Trial Judgment in Queen's Bench Division

Legal Issues

  1. 1 Whether the judge erred in awarding indemnity costs and enhanced interest under Part 36 based on the claimant's offers; whether the claimant should have been awarded all its costs or only a percentage due to conduct; whether the Part 36 offers were valid; whether costs of a late site inspection application should be awarded to the contractor.

Ratio Decidendi

The first Part 36 offer made by the claimant was a valid offer under Part 36. Although the judge erred in awarding Part 36 consequences based on the second (withdrawn) offer, it was appropriate to award indemnity costs and enhanced interest from the date the pipe was produced and the contractor was in a position to evaluate the claim properly. The claimant's conduct did not justify a reduction to 60% of costs. The costs of the December site inspection application were properly included as costs in the case.

Court Disposition

Appeal dismissed in substance; costs order varied to award indemnity costs and enhanced interest from 1 November 2010 (after production of the pipe) rather than from the expiry of the second Part 36 offer.

Orders

  • Indemnity costs and enhanced interest at 6% on judgment sum and costs awarded to claimant from 1 November 2010.
  • Claimant awarded its costs of the whole proceedings, including costs of December 2010 site inspection application.