John McKeown v Diana Langer

John McKeown v Diana Langer

A Calderbank offer that is not disclosed to the court and is not admissible does not require the court to defer a costs order in split trials. The discretion under CPR 44.2 is broad, and the existence of an undisclosed Calderbank offer does not oust the general rule that costs follow the issue. The judge was correct not to speculate about the offer’s terms or effect and to make an immediate costs order based on the merits, conduct, and policy considerations.

Parties
Appellant/respondent: John McKeown; Respondent/petitioner: Diana Langer
Jurisdiction
England and Wales
Judgment Date
26 November 2021
Procedural Posture
Civil Appeal / Appeal From High Court Costs Order Following Split Trial in Unfair Prejudice Petition
Outcome
Appeal dismissed
Legal Topics
Costs Discretion Under CPR 44.2, Effect of Calderbank Offers Vs CPR Part 36 Offers, Unfair Prejudice Petitions, Split Trials (liability and Quantum)
Civil Procedure Company Law Costs Discretion Under CPR 44.2 Effect of Calderbank Offers Vs CPR Part 36 Offers Unfair Prejudice Petitions Split Trials (liability and Quantum)

Case Brief

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Parties

John McKeown

Appellant/respondent

Diana Langer

Respondent/petitioner

Procedural Posture

Civil Appeal / Appeal From High Court Costs Order Following Split Trial in Unfair Prejudice Petition

Legal Issues

  1. 1 Whether a Calderbank offer (without prejudice save as to costs) must be treated as equivalent to a CPR Part 36 offer for costs purposes in split trials
  2. 2 Whether the judge erred in refusing to defer a costs order due to the existence of an undisclosed Calderbank offer

Ratio Decidendi

A Calderbank offer that is not disclosed to the court and is not admissible does not require the court to defer a costs order in split trials. The discretion under CPR 44.2 is broad, and the existence of an undisclosed Calderbank offer does not oust the general rule that costs follow the issue. The judge was correct not to speculate about the offer’s terms or effect and to make an immediate costs order based on the merits, conduct, and policy considerations.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed. The costs order of the High Court stands.