Cunningham v AST Express Ltd & Anor [2009] EWCA Civ 767 (11 June 2009)

Cunningham v AST Express Ltd & Anor [2009] EWCA Civ 767 (11 June 2009)

The Recorder erred by not giving proper effect to the defendant's pre-action offer, which should have been treated as a Part 36 offer. From 1 September 2006, the defendant was the successful party for costs purposes. There was no justification based on the parties' conduct to depart from the usual order; the claimant's conduct, including exaggeration of the claim, reinforced the appropriateness of the usual costs order.

Citation
[2009] EWCA Civ 767
Parties
Respondent/claimant: Cunningham; Appellants/defendants: AST Express Ltd & Anr
Jurisdiction
England and Wales
Judgment Date
11 June 2009
Procedural Posture
Appeal (civil) / Appeal From Costs Order After Trial
Outcome
Appeal allowed
Legal Topics
Costs Orders, Part 36 Offers, Exaggerated Claims, Conduct of Parties
Civil Procedure Personal Injury Costs Orders Part 36 Offers Exaggerated Claims Conduct of Parties

Case Brief

Summary, issues, holding and outcome

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Parties

Cunningham

Respondent/claimant

AST Express Ltd & Anr

Appellants/defendants

Procedural Posture

Appeal (civil) / Appeal From Costs Order After Trial

Legal Issues

  1. 1 Whether the Recorder erred in law or exercised discretion wrongly in making a costs order requiring the defendant to pay half the claimant's costs between 1 September 2006 and 15 November 2007 despite an unaccepted settlement offer.
  2. 2 Whether the defendant's pre-action offer should have the same effect as a Part 36 offer for costs purposes.

Ratio Decidendi

The Recorder erred by not giving proper effect to the defendant's pre-action offer, which should have been treated as a Part 36 offer. From 1 September 2006, the defendant was the successful party for costs purposes. There was no justification based on the parties' conduct to depart from the usual order; the claimant's conduct, including exaggeration of the claim, reinforced the appropriateness of the usual costs order.

Court Disposition

Appeal allowed

Orders

  • Recorder's costs order set aside.
  • Defendant to pay claimant's costs up to 1 September 2006.