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Margaret Jolly (acting as Widow and Executrix of the Estate of her late husband, Stephen Jolly) v Harsco Infrastructure Services Ltd

Mr Jolly died of mesothelioma and his widow sued his employer, who denied liability. In April 2012 the claimant made a Part 36 offer in standard format to settle liability 99% in her favour.

The defendant eventually accepted the 99% offer in October 2012, more than 5 months after the offer had been made and well beyond the 21-day period. The claimant sent a draft consent order to the defendant seeking (a) "judgment on the issue of liability be entered 99 percent in favour of the claimant" and (b) costs on the issue of liability on the standard basis up to the 21-day expiry and on the indemnity basis thereafter, and interest on costs. These orders were said to be “ pursuant to CPR 6.14” which starts “this rule applies where upon a judgment being entered...judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a Part 36 offer .” The defendant replied “CPR 36.14 doesn’t bite - your client has not received judgment so the provisions you have put in do not apply."  The claimant submitted that “judgment along the lines proposed has been entered in countless cases” but Cranston J agreed with the defendant . He hald he had no power to enter judgment as “nothing in the self contained code which is Part 36 provides for judgment to be entered in this situation ” and that CPR 36.14 therefore does not apply. Instead, he ordered that the issue of liability should be stayed upon the terms of the claimant's offer and the question of costs should be postponed and dealt with “under CPR .10(4) and (5) or under the general discretion under CPR 44.3”.  

What does this mean?  CPR 36(10.5) makes no mention of indemnity costs, although they could be ordered under the general discretion. But otherwise, the claimant in these circumstances will get his costs on the issue of liability on the standard basis. He will have obtained no advantage in making a Part 36 offer that was accepted out of time. It will be interesting to see how Judges exercise their discretion in costs in these circumstances.

Napier Miles / 1st Dec 2012


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