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F & C Alternative Investments (Holdings) Limited v Barthelemy  EWCA Civ 843 Click here for transcript
Court of Appeal (Civil Division): Arden LJ, Tomlinson LJ and Davis LJ
22 June 2012
The defendants' offer was not compliant with Part 36; the costs judge had erred in principle in drawing an analogy with Part 36 when awarding indemnity costs and interest.
The claimant brought proceedings for a declaration that the defendants' exercise of an option was not valid. The claimants succeeded on some issues but the overall victors were the defendants. The claimants were ordered to pay each of the defendants nearly £4 million. The defendants' had previously offered to sell their interests to the claimant for a total of over £5.8 million, which was significantly less than the judge subsequently held that they were entitled. The defendants' offer did not comply with Part 36 and expressly stated that it was made outside of Part 36. The defendants were awarded their costs on the standard basis until the expiry of the offer and thereafter indemnity costs. The claimants appealed against the award of indemnity costs and the rates of interest from the expiry of the defendant's offer. The defendants cross-appealed against the judge's decision to disallow 30% of their costs.