Hertel & v Saunders & Anor [2015] EWHC 2848 (Ch) (09 October 2015)

Hertel & v Saunders & Anor [2015] EWHC 2848 (Ch) (09 October 2015)

The defendants' offer was not a valid Part 36 offer because it did not comply with the mandatory requirement of r. 36.2(2)(d) (it did not relate to part of the claim as pleaded at the time of the offer). Therefore, the costs consequences of Part 36 did not apply. The proper approach was to exercise the court's discretion under r. 44.2, and on the facts, the claimants should pay the defendants' costs, subject to the defendants' agreement to pay the claimants' costs relating to the part of the claim introduced by amendment as set out in the offer letter.

Citation
[2015] EWHC 2848 (Ch)
Parties
Claimant/respondent: Tim-Alexander Gunther Nikolaus Hertel; Claimant/respondent: Artemis International SARL; Defendant/appellant: John Francis Saunders; Defendant/appellant: Liquid Strategies Limited
Jurisdiction
England and Wales
Judgment Date
09 October 2015
Procedural Posture
Appeal (costs Order) / Post Judgment, Appeal From Deputy Master to High Court
Outcome
Appeal allowed. Orders for costs in favour of the claimants set aside. Costs awarded to the defendants, subject to the agreed exception.
Legal Topics
Part 36 Offers, Costs Orders, Amendment of Pleadings, Settlement, CPR R. 44.2 Discretion
Civil Procedure Costs Part 36 Offers Costs Orders Amendment of Pleadings Settlement CPR R. 44.2 Discretion

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Parties

Tim-Alexander Gunther Nikolaus Hertel

Claimant/respondent

Artemis International SARL

Claimant/respondent

John Francis Saunders

Defendant/appellant

Liquid Strategies Limited

Defendant/appellant

Procedural Posture

Appeal (costs Order) / Post Judgment, Appeal From Deputy Master to High Court

Legal Issues

  1. 1 Whether the defendants' settlement offer was a valid Part 36 offer under the Civil Procedure Rules
  2. 2 Whether the Deputy Master erred in awarding costs to the claimants under r. 36.10(2)
  3. 3 What is the proper order for costs where a settlement offer does not comply with Part 36

Ratio Decidendi

The defendants' offer was not a valid Part 36 offer because it did not comply with the mandatory requirement of r. 36.2(2)(d) (it did not relate to part of the claim as pleaded at the time of the offer). Therefore, the costs consequences of Part 36 did not apply. The proper approach was to exercise the court's discretion under r. 44.2, and on the facts, the claimants should pay the defendants' costs, subject to the defendants' agreement to pay the claimants' costs relating to the part of the claim introduced by amendment as set out in the offer letter.

Court Disposition

Appeal allowed. Orders for costs in favour of the claimants set aside. Costs awarded to the defendants, subject to the agreed exception.

Orders

  • Set aside orders that defendants pay claimants' costs up to 10 March 2015 and costs of hearing on 30 March 2015.
  • Set aside order for payment on account of those costs.