Hertel v Saunders [2018] EWCA Civ 1831

Judge: Lewison LJ, David Richards LJ, Coulson LJ

Citation: [2018] EWCA Civ 1831


Part 36 costs consequences did not apply to an offer that was related to an additional claim which had only been intimated and set out in draft Amended Particulars of Claim.

Longer text:

Where an offer was expressed to relate to an additional claim which the defendants had set out in draft Amended Particulars of Claim that claim was not yet part of the claim for the purposes of r. 36.5(1)(d) therefore the offer was not a Part 36 offer and the normal costs consequences did not apply. Although the claimant argued that it was possible to make a Part 36 offer before the commencement of proceedings and the references to the whole or part of a claim should be taken to include references to a claim that had not yet been brought but which was brought after the offer was made, the judge held that Part 36 is a highly prescriptive and self-contained code and it would not be right to add in further provisions on the basis that it would have an analogous effect to an existing express provision.[1]

On appeal by the Claimants, the Court of Appeal held that the position before proceedings commenced was different to that once they had been commenced.  Once proceedings were underway, there would be pleadings in existence and the Civil Procedure Rules regulated the proceedings.  It would not be right to construe the Rules in a way that ignored the certainty and clarity which the pleadings provided and to interpret Rule 36.10(2) as if the proceedings had not yet begun.  It would introduce unnecessary uncertainty if claims or parts of claims or issues were given a wide definition, not anchored in pleadings.  The words “claim”, “part of a claim” and “issue” referred to those which had been pleaded, not to those which had mainly been intimated but never pleaded.  Where there was a proposed amendment to a claim, it was not a “claim” within the Rule until the amendment had been allowed.  The appeal was dismissed.

[1] Hertel v Saunders [2015] EWHC 2848 (Ch); [2015] 5 Costs L.R. 825, Morgan J.



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