The cost of a late acceptance of Part 36 offers

13th September 2017 by

Perhaps not surprisingly, there have been a plethora of authorities in relation to costs and recoveries and that continues apace.

In Jordan v MGM Limited [2017] EWHC 1937 (Ch), the claimant was (“rightly”) penalised by the very late acceptance of a Part 36 offer.  The offer had been made over two and half years previously and it was accepted just before trial.  As a consequence, the Claimant was ordered to pay the Defendant’s costs (and on an indemnity basis) from the date of expiry of the relevant period under the Part 36 offer.

In a similar case of Briggs v CEF Holdings Ltd (2017) CA (Civ Div), the defendant appealed to the Court of Appeal in respect of the first instance district judge’s order on costs. The Court of Appeal overturned the district judge’s ruling and found for the defendant on costs on the Part 36 issue.

There has been much focus on ensuring that my team manage Part 36 offers properly in order to ensure that they know which ones are open and hence which ones might (depending on developments within the case) need to be withdrawn or increased/decreased.  Of course, the other side of the coin is ensuring that you consider a Part 36 offer that is made by the other party carefully (and then advising the client accordingly) in order to determine whether it should be accepted or, if not, ensuring that the client is fully aware of the possible consequences.  I can easily see how failure to deal with such matters properly could lead to a claim against the solicitor.

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