Answer: why. It is not a genuine offer to settle.
claimant who offered to settle by offering just 7p less than the total awarded should not recover the costs benefits of part 36 because that offer was not genuine, a county court has ruled.
The judge in Birmingham County Court in Gohil v Advantage Insurance Company Limited, agreed the claimant had made a ‘tactical step’ rather than offer to settle at 99.999% of the full value of the claim.
The decision was based on the Court of Appeal judgment in Huck v Robson, where Lord Justice Jonathan Parker said the Part 36 offer should represent ‘at the very least a genuine and realistic attempt by the claimant to resolve the dispute by agreement’.
In this case, the claimant had claimed £4,937.07, and the defendant was ordered to pay costs and disbursements in that sum.
The issue arose because the claimant had made a prior offer to settle at £4,937. She then claimed the additional sums allowed through Part 36 on the basis she had beaten that offer.
The defendant accepted that claimant had obtained a judgment ‘at least as advantageous’ as her offer but submitted that the offer was not a genuine attempt to settle proceedings.
The judge accepted this argument, saying “The discount presented no real opportunity for settlement but appears to be merely a tactical step designed to secure the benefit of the [Part 36] incentives.’ He determined that the additional awards outlined in 36.17 did not apply.
It is not possible to say how much the Defendant could have offered to be a genuine offer, but clearly 7p was tantamount to agreeing the total amount and the Defendant should just have paid 7p more and resolved the case.
It makes sense in any event to engage in mediation at an early stage and resolve matters before they get this far down the line.