Application in Private [2017] EWHC 3606 (Comm) (14 February 2017)

Application in Private [2017] EWHC 3606 (Comm) (14 February 2017)

There was no sufficient change of circumstances—either from the course of the trial or the Popplewell judgment—to justify refusing permission to accept or granting permission to withdraw the Part 36 offers. The defendants must be held to their offer, as the rules require an objective, radical change, not a subjective reassessment or a non-binding first-instance decision. The claimants are permitted to accept the offers, and costs are to be apportioned according to the rules and the court's discretion.

Citation
[2017] EWHC 3606 (Comm)
Parties
Claimant: Claimants (various, including Arcadia, Marks & Spencer, Sainsbury's, Argos); Defendant: Visa Defendants
Jurisdiction
England and Wales
Judgment Date
14 February 2017
Procedural Posture
Commercial Court Litigation (competition Law) / Interlocutory Application During Trial (applications for Permission to Accept/withdraw Part 36 Offers)
Outcome
Claimants granted permission to accept Part 36 offers; defendants refused permission to withdraw offers.
Legal Topics
Part 36 Offers, Costs Orders, Settlement, Change of Circumstances, Multilateral Interchange Fees (mif), Article 101 TFEU
Civil Procedure Competition Law Part 36 Offers Costs Orders Settlement Change of Circumstances Multilateral Interchange Fees (mif) Article 101 TFEU

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Parties

Claimants (various, including Arcadia, Marks & Spencer, Sainsbury's, Argos)

Claimant

Visa Defendants

Defendant

Procedural Posture

Commercial Court Litigation (competition Law) / Interlocutory Application During Trial (applications for Permission to Accept/withdraw Part 36 Offers)

Legal Issues

  1. 1 Whether claimants should be granted permission to accept Part 36 offers during trial
  2. 2 Whether defendants should be granted permission to withdraw Part 36 offers during trial
  3. 3 What are the costs consequences of acceptance/withdrawal of Part 36 offers during trial

Ratio Decidendi

There was no sufficient change of circumstances—either from the course of the trial or the Popplewell judgment—to justify refusing permission to accept or granting permission to withdraw the Part 36 offers. The defendants must be held to their offer, as the rules require an objective, radical change, not a subjective reassessment or a non-binding first-instance decision. The claimants are permitted to accept the offers, and costs are to be apportioned according to the rules and the court's discretion.

Court Disposition

Claimants granted permission to accept Part 36 offers; defendants refused permission to withdraw offers.

Orders

  • Claimants given permission to accept the offer as of 14 February 2017.
  • Defendants refused permission to withdraw their offer.