HT-2023-000006 - [2024] EWHC 2914 (TCC)

This period is the period between the 8 February 2024 offer taking effect and Judgment No. 5.

As I have held above, the 8 February 2024 offer was an effective offer which A & V failed to beat.

I have no hesitation in holding that it was unreasonable for A & V to continue its pursuit of a higher recovery in the face of a reasonable offer.

I accept that this was a late offer in the context of the previous history of the multiple proceedings, and that it was probably driven by a belated realisation on J&BH’s part of the risks it faced in this action. However, contrary to A & V’s submissions, it was a reasonable and good faith attempt to settle this difficult case.

I have set out above guidance in the authorities as to the matters to be taken into account when considering what costs order should be made following a failure to beat an effective Part 36 offer.

Those authorities emphasise, firstly, the difference between the exercise carried out pursuant to CPR Rule 44 and that carried out pursuant to CPR Part 36 where a party has failed to beat a Part 36 offer. In the latter case, an important factor is that acceptance of the offer could or would have reduced the costs incurred by both parties after the offer had been made.

Applying the guidance given in the authorities to which I have referred, in my judgment the usual consequences should flow from a Claimant’s failure to beat a Part 36 Offer: A & V will pay J&BH’s reasonable costs from 1 March 2024 to the date of Judgment No. 5.