Citation: 1 Costs LO 1
The court considered whether the defendant's Part 36 offer in a counterclaim was to be treated as a claimant's offer, with consequences set out in CPR 36.17(4) , or a defendant's offer, with consequences set out in CPR 36.17(3) . The defendant had made a Part 36 offer to settle the claim against it, with the offer stated as taking account of any counterclaim which the defendant might have. The defendant ultimately achieved a better result at trial and sought to claim the enhanced costs consequences available to claimant Part 36 offers. Held:
- The offer was a valid Part 36 offer, but it was a defendant's offer and therefore had the costs consequences set out in CPR 36.17(3) . Where a Part 36 offer is made by a defendant, whether the Part 36 offer “is properly regarded as a claimant's offer depends on a construction of the offer as a whole” ( AF v BG [2010] 2 Costs LR 164 ). In the *2 instant case the offer did not expressly state that it was a claimant's offer; it did not offer to accept an amount of money in settlement of the claim and counterclaim, but instead offered to pay an amount to the claimant; it offered to pay the other side's costs; and it did not spell out the enhanced consequences of non-acceptance provided for by CPR 36.17(4) .
- Defendant awarded costs on the indemnity basis. The claim was a hopeless claim which should not have been pursued.
