Epsom College v Pierse Contracting Southern Ltd

Epsom College v Pierse Contracting Southern Ltd

The judge’s award of indemnity costs and enhanced interest under Part 36 could not be based on the withdrawn second offer, but the first, unwithdrawn, and valid Part 36 offer could support such an order from the date the pipe was produced (1 November 2010). There was no basis to reduce the claimant’s costs to 60% as the contractor’s speculative defence and the claimant’s accidental misplacement of the pipe did not justify such a reduction. The judge’s discretion was properly exercised.

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
Civil Appeal / Appeal From Queen’s Bench Division, Post Trial Costs Determination
Outcome
Appeal dismissed save for technical variation of the date from which indemnity costs and enhanced interest run.
Legal Topics
Part 36 Offers, Indemnity Costs, Enhanced Interest, Conduct of Litigation, Case Management
Civil Procedure Costs Part 36 Offers Indemnity Costs Enhanced Interest Conduct of Litigation Case Management

Case Brief

Summary, issues, holding and outcome

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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

Civil Appeal / Appeal From Queen’s Bench Division, Post Trial Costs Determination

Legal Issues

  1. 1 Whether the judge erred in awarding indemnity costs and enhanced interest under Part 36 based on the claimant’s offers
  2. 2 Whether the claimant should have been awarded all its costs or only a percentage due to conduct
  3. 3 Whether the Part 36 offers were valid and effective for costs consequences

Ratio Decidendi

The judge’s award of indemnity costs and enhanced interest under Part 36 could not be based on the withdrawn second offer, but the first, unwithdrawn, and valid Part 36 offer could support such an order from the date the pipe was produced (1 November 2010). There was no basis to reduce the claimant’s costs to 60% as the contractor’s speculative defence and the claimant’s accidental misplacement of the pipe did not justify such a reduction. The judge’s discretion was properly exercised.

Court Disposition

Appeal dismissed save for technical variation of the date from which indemnity costs and enhanced interest run.

Orders

  • Indemnity costs and enhanced interest at 6% on judgment sum and costs awarded to claimant from 1 November 2010.
  • Otherwise, appeal dismissed.