HT-2022-000255 - [2025] EWHC 2030 (TCC)

This judgment concerns the consequential matters arising from the liability judgment handed down on 11 June 2025: [2025] EWHC 1434 (TCC). In very short order, in December 2021 Matière SAS (“Matière”), as claimant, instituted proceedings against ABM Precast Solutions Ltd (“ABM”), as defendant, for a balance owing on unpaid invoices in the total sum of £373,295.06. Those sums were said to be due under the Consortium Agreement. In the Defence and Counterclaim, dated February 2022, that claim for payment was the subject of a partial admission that, subject to set off, £157,241.91 was due. The balance of the claim was not admitted. The claim was also met with a counterclaim for damages for breach of express obligations of good faith owed under both the Consortium Agreement and a subsequent agreement known as the Collaboration Agreement. At that time, the counterclaim was quantified in the order of £4.8m. Later, the quantum was increased by amendment to £18.92m, alternatively £16.62m.

By the time of the trial, ABM had admitted all but £35,000 of the sum claimed by Matière on the invoices. In the event, I found that Matière was entitled to the full sum claimed and gave judgment in the sum of £373,295.06 and interest. I dismissed the counterclaim in its entirety.

On 4 April 2022, that is after service of the Defence and Counterclaim in its original form, Matière issued a Part 36 letter (“the Part 36 Offer”) expressed in the following way:

“…our client is aware that the costs of these proceedings will quickly become disproportionate to the value of their claim (disregarding in its entirety, of course, your client’s unmeritorious and entirely speculative counterclaim, which is bound to fail). Our client is therefore amenable to the notion of settling the proceedings if an acceptable compromise can be reached with your client.

In the circumstances, we are instructed to make the following offer of settlement pursuant to Part 36 of the Civil Procedure Rules (the “Offer”).

The Offer is made by our client as claimant in these proceedings. It is therefore intended to have the consequences set out in Section I of CPR Part 36. In particular, your client will be liable for our client’s costs up to the date of service of notice of acceptance, if the Offer is accepted within 21 days (the “relevant period”). No doubt you will advise your client of the cost consequences of not accepting the Offer, either within the relevant period or at all.

Our client is prepared to settle the entire proceedings, including the whole of the claim and your client’s counterclaim, for the sum of £350,000 (the “Settlement Sum”) to be paid to our client in full and in cleared funds within 14 days of acceptance of this Offer. For the avoidance of doubt, the Settlement Sum does not include our client’s costs. The amount is inclusive of interest until the relevant period has expired. Thereafter, interest at a rate of 8% p.a. will accrue.”

The letter went on to set out the consequences for which Matière would contend if it obtained a judgment which was equal to or more advantageous than the Part 36 Offer.

There was no response to the letter.

It is common ground that Matière’s offer of April 2022 is a valid Claimant’s Part 36 offer within the meaning of CPR 36.5 and that Matière achieved a more advantageous result than that which it offered to accept. That is because, whatever interest is awarded (see below), the principal sum for which judgment has been given exceeds, on its own, the amount in the offer.

Also relevant to the chronology is that, on 17 September 2024, that is shortly before trial, ABM issued its own Part 36 offer in which it expressed itself as willing to accept £5m in full and final settlement of the whole proceedings.

Any determination of Matière’s entitlement to interest is itself dependent on the effect of the Part 36 Offer, so it is right to consider that question first.