Background
Essendi UK Hotels 2 Limited was substantially successful in a trial of preliminary issues against London Property Company Limited. Because the same judge was expected to try the remaining issues, Essendi sought a ruling on whether it could tell him the date of London Property Company’s earliest offer under CPR Part 36 and seek its costs through the date 21 days after that offer.
CPR 36.16 permits a trial judge, after part of a case has been decided, to be told whether other Part 36 offers exist but prohibits disclosure of their terms before all issues have been determined. London Property Company argued that the rule also prevented disclosure of an offer’s date. Essendi contended that the date was not a term of the offer and could be disclosed for purposes of its interim costs application.
The Court’s Holding
HHJ Stephen Davies held that the judge could be told the date of London Property Company’s first Part 36 offer. Reading CPR 36.16 together with the rest of Part 36, the court concluded that the date on which an offer was made is distinct from the offer’s substantive terms.
The date instead formed part of the fact that a Part 36 offer had been made. Once CPR 36.16(4) permitted disclosure of whether such offers existed after determination of preliminary issues, it also permitted disclosure of related non-term information, including the date. The ruling addressed only whether the date could be disclosed; it did not decide whether Essendi should receive the costs it sought.
Key Takeaways
- The date of a Part 36 offer is not one of the offer’s “terms” for purposes of CPR 36.16.
- After part of a case has been decided, the trial judge may be told the date of an unresolved, case-wide Part 36 offer without being told its substantive terms.
- Permitting disclosure enables the court to consider, but does not require it to grant, an interim costs order covering the period before the offer became relevant.
Why It Matters
The decision clarifies an ambiguity in CPR 36.16 that can matter in complex, staged litigation. A party that succeeds at an initial trial may identify the date of an opponent’s Part 36 offer when asking the court to determine costs incurred before that offer could affect the costs analysis.
The judgment preserves the prohibition against revealing an unresolved offer’s substance while allowing enough information for the court to consider the civil-litigation principle that costs may be addressed as proceedings progress.