My Part 36 Case of the Year – Professor Dominic Regan

It has to be said that Part 36 breeds more procedural judgments than any other element within the Civil Procedure Rules.

My standout decision of 2019 is that of the Court of Appeal in CALONNE CONSTRUCTION LIMITED V DAWNUS SOUTHERN LIMITED (2019) EWCA Civ 754. It delivers not one but two points of real importance.

It held that an offer here made by the defendant could deal both with the claim as pleaded but also an intended counterclaim. Asplin LJ wisely observed that since a valid offer could be made when there were no proceedings at all then it should follow that an intended counterclaim could be thrown into the mix as well. If that were not so then it would be necessary to amend or issue fresh proceedings. Either of these courses would consume time and money: that would be contrary to the overriding objective.

The second unanimous finding of the Court concerned interest. The relevant offer stipulated that “The Settlement Sum is inclusive of interest until the relevant period has expired. Thereafter, interest at a rate of 8% per annum will be added.”

This was valid. After all, “if a party could not provide for interest to run after the end of the Relevant Period, it would not be compensated with interest for any delay between the end of that period and a subsequent acceptance of the offer.”

So, two real points of practical importance determined at an appellate level.

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