Calonne Construction Limited v Dawnus Southern Limited [2019] EWCA Civ 754



Judge: Asplin LJ

Citation: [2019] EWCA Civ 754

Part 36 offers on unissued Counterclaims and provisions for interest – Part 36

Summary:

The Court held that a Part 36 offer could be made in relation to an un-pleaded Counterclaim. Further with regard to interest the offer was stated to include interest until the expiry of the relevant period, but that thereafter interest would be added at 8% per annum. The Court held that such a provision would not render the Part 36 offer invalid.

Longer Text:

The Claimant sued the Defendant for damages for defective and incomplete work of refurbishment. Before serving its Defence and Counterclaim, the Defendant made a Part 36 offer, indicating that it would accept £100,000 in settlement of both the claim and its unissued Counterclaim. The offer was stated to include interest until the expiry of the relevant period, but that thereafter interest would be added at 8% per annum.  The Claimant rejected the offer and at trial the judge found sufficiently in favour of the Defendant to conclude that it had beaten its own offer. The Claimant was ordered to pay a proportion of the Defendant’s costs.

The Claimant then appealed, unsuccessfully. A Part 36 offer may be made at any time, including before the commencement of proceedings. It therefore could not be right to say that a Part 36 offer could not be made in relation to an un-pleaded Counterclaim. With regard to interest after the relevant period had expired, the inclusion of such a provision would not render the Part 36 offer invalid.  Rule 36.2(2) makes it clear that a party may make an offer to settle in whatever way that party chooses. The Appellant’s argument were therefore, was rejected.

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