Hertel & Anor v Saunders & Anor [2018] EWCA Civ 1831 (31 July 2018)

Hertel & Anor v Saunders & Anor [2018] EWCA Civ 1831 (31 July 2018)

A Part 36 offer made in respect of a proposed but unpleaded claim does not comply with CPR r.36.2(2)(d) and is not a valid Part 36 offer. After proceedings have commenced, only pleaded claims or issues are within the scope of Part 36. Consequently, the costs consequences of Part 36 do not apply, and the general discretion under Part 44.2 governs costs. The defendants, as the successful party on the pleaded claims, are entitled to their costs of the abandoned claims.

Citation
[2018] EWCA Civ 1831
Parties
Claimant/appellant: Tim-Alexander Gunther Nikolaus Hertel; Claimant/appellant: Artemis International SARL; Defendant/respondent: John Francis Saunders; Defendant/respondent: Liquid Strategies Limited
Jurisdiction
England and Wales
Judgment Date
31 July 2018
Procedural Posture
Civil Appeal / Appeal From High Court (chancery Division) to Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Part 36 Offers, Costs Orders, Pleadings and Amendments, Interpretation of Civil Procedure Rules
Civil Procedure Part 36 Offers Costs Orders Pleadings and Amendments Interpretation of Civil Procedure Rules

Case Brief

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Parties

Tim-Alexander Gunther Nikolaus Hertel

Claimant/appellant

Artemis International SARL

Claimant/appellant

John Francis Saunders

Defendant/respondent

Liquid Strategies Limited

Defendant/respondent

Procedural Posture

Civil Appeal / Appeal From High Court (chancery Division) to Court of Appeal

Legal Issues

  1. 1 Whether a Part 36 offer can relate to a proposed but unpleaded claim
  2. 2 Whether the offer in question complied with CPR Part 36 requirements
  3. 3 Who should bear the costs of abandoned claims

Ratio Decidendi

A Part 36 offer made in respect of a proposed but unpleaded claim does not comply with CPR r.36.2(2)(d) and is not a valid Part 36 offer. After proceedings have commenced, only pleaded claims or issues are within the scope of Part 36. Consequently, the costs consequences of Part 36 do not apply, and the general discretion under Part 44.2 governs costs. The defendants, as the successful party on the pleaded claims, are entitled to their costs of the abandoned claims.

Court Disposition

Appeal dismissed

Orders

  • Claimants to pay the defendants' costs of the abandoned claims