30 Second Read – A Well Timed Part 36 Offer

Professor Dominic Regan

Another case recently reported is HOCHTIEF V ATKINS (2019) EWHC 3028 (TCC) where the Claimant recovered an uplift of £65,123, after having bettered its offer to settle by £4,848.

This was a claim concerning a bridge and an underpass. The Judge found that the Claimant’s offer was precise and made after investigations had been carried out. This meant that there was sufficient material for both parties to make an informed judgment as to the merits of the dispute (as per paragraph 17 of the judgement), and at a level to indicate it was a genuine offer to settle.

Costs were to be determined under the Part 36 regime. The general costs discretion of the Court under CPR 44 is ousted by the Part 36 jurisdiction (see CPR 44.2 (4)(c).There was nothing unjust about applying conventional Part 36 benefits including the uplift of 10% on the first £500,000 of the award and 5% on the remainder.

As the Claimant had failed on one part of the case, the underpass claim, it was right to make a proportionate costs order. The Court decided that Claimant should forego 15% of costs meaning that it was to recover 85%.


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