COMPLIANCE WITH PART 36 OF THE CPR

In PHI Group Ltd v Robert West Consulting Ltd [2012] EWCA Civ 588 the Court of Appeal held that the claimant had failed to make a Part 36 offer as a result of its failure to specify a period of not less than 21 days within which the defendant would be liable for the claimant’s costs if the offer was accepted. Although the letter was clearly intended as a Part 36 offer, its failure to make any reference to a time period meant that it was not compliant with Part 36 and it was not open to the court to treat it as if were compliant. However, the Court of Appeal was able to achieve a result similar to that which it would have reached under Part 36 by the exercise of its general discretion as to costs under Part 44 of the CPR.

The facts

In April 2009 the claimant, Carillion JM Ltd, brought a claim against PHI Group Ltd. At a later point in 2009 PHI notified Robert West Consulting Ltd (RWC) of its contribution claim against RWC and RWC was joined as a third party. In May 2010 PHI paid £3.8m to Carillion and the claim between these two parties was thereby settled.