The Judge first found that, in the absence of a Part 36 offer, an issue based or proportionate costs order under Part 44 would have been appropriate. Each allegation was a separate, self-contained, discrete claim which was supported by its own separate expert evidence. The second allegation, it was accepted by the claimant, was weaker than the first allegation but it was still pursued. It was a question of fact and it may be quite right that the court should decide disputed facts and therefore for the defendant to defend the claim. It was therefore reasonable to take the failed point, but the claimant had not succeeded on it. The Judge went on to find that, although Part 36 is a self-contained regime which does not refer to issue based or proportionate costs orders, it was permissible for the court to make such orders if necessary to avoid injustice. The existence of a Part 36 offer did not preclude such an order being made. A costs order was made limited to the percentage of the claimant’s costs which reflected the time expended on the first question.
This case serves as a warning that obtaining a more advantageous award at court than a part 36 offer does not in itself prevent the court from looking at other issues when considering the issue of proportionality.
Adam Dyl & Jodee Mayer, Anthony Gold