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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Gibbon v Manchester City Council [2010] EWCA Civ 726 (25 June 2010) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2010/726.html Cite as: [2010] EWCA Civ 726, [2010] PIQR P16, [2010] 36 EG 120, [2010] WLR 2081, [2010] 1 WLR 2081, [2010] CP Rep 40, [2010] 27 EG 84, [2010] 5 Costs LR 828 |
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ON APPEAL FROM MANCHESTER
COUNTY COURT
(His Honour Judge Holman)
(9MA06104)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHREWSBURY COUNTY COURT
(His Honour Judge Rubery)
(7SY00265)
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE CARNWATH
and
LORD JUSTICE MOORE-BICK
____________________
SUSAN ![]() ![]() |
Claimant/ Appellant |
|
- and - |
||
![]() ![]() |
Defendant/ Respondent |
____________________
Mr. T.P. Hodgson (instructed by Manchester
City Council Legal Department) for the respondent
____________________
Crown Copyright ©
Lord Justice Moore-Bick :
The issues
Part 36
"Scope of thisPart
(1) ThisPart
contains rules about
(a) offers to settle; and
(b) the consequences where an offer to settle is made in accordance with thisPart
;
. . .
Form and content of aPart 36
offer
. . .
36
.2
(1) An offer to settle which is made in accordance with this rule is called aPart 36
offer.
(2) APart 36
offer must –
(a) be in writing;
(b) state on its face that it is intended to have the consequences of Section I ofPart 36
;
(c) specify a period of not less than 21 days within which the defendant will be liable for the claimant's costs in accordance with rule36
.10 if the offer is accepted;
(d) state whether it relates to the whole of the claim or topart
of it or to an issue that arises in it and if so to which
part
or issue; and
(e) state whether it takes into account any counterclaim.
Part 36
offers – general provisions
. . .
36
.3
. . .
(3) APart 36
offer which offers to pay or offers to accept a sum of money will be treated as inclusive of all interest until —
(a) the date on which the period stated under rule36
.2(2)(c) expires; or
(b) if rule36
.2(3) applies, a date 21 days after the date the offer was made.
. . .
(6) After expiry of the relevant period and provided that the offeree has not previously served notice of acceptance, the offeror may withdraw the offer or change its terms to be less advantageous to the offeree without the permission of the court.
(7) The offeror does so by serving written notice of the withdrawal or change of terms on the offeree.
Time when aPart 36
offer is made
36
.7
(1) APart 36
offer is made when it is served on the offeree.
(2) A change in the terms of aPart 36
offer will be effective when notice of the change is served on the offeree.
Acceptance of aPart 36
offer
36
.9
(1) APart 36
offer is accepted by serving written notice of the acceptance on the offeror.
(2) . . . aPart 36
offer may be accepted at any time (whether or not the offeree has subsequently made a different offer) unless the offeror serves notice of withdrawal on the offeree.
. . .
Costs consequences following judgment
36
.14
(1) This rule applies where upon judgment being entered –
(a) a claimant fails to obtain a judgment more advantageous than a defendant'sPart 36
offer; or
(b) judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant'sPart 36
offer.
(2) . . . where rule36
.14(1)(a) applies, the court will, unless it considers it unjust to do so, order that the defendant is entitled to —
(a) his costs from the date on which the relevant period expired; and
(b) interest on those costs.
(3) . . . where rule36
.14(1)(b) applies, the court will, unless it considers it unjust to do so, order that the claimant is entitled to –
(a) interest on the whole orpart
of any sum of money (excluding interest) awarded at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired;
(b) his costs on the indemnity basis from the date on which the relevant period expired; and
(c) interest on those costs at a rate not exceeding 10% above base rate."
Gibbon
v
Manchester
City Council
L G Blower Ltd v Reeves
Lord Justice Carnwath:
"…how the court ought to approach the matter in circumstances where: (a) one party has made an offer which was nearly but not quite sufficient; and (b) the other party has rejected that offer outright without any attempt to negotiate." (para 71)
"… a more wide-ranging review of all the facts and circumstances of the case in deciding whether the judgment, which is the fruit of the litigation, was worth the fight." (para 3)
The rationale lay in the modern approach exemplified in the CPR, under which compromise was encouraged in the interests both of the parties and of the administration of justice:
"Litigation is time-consuming and it comes at a cost, emotional as well as financial. Those are, therefore, appropriate factors to take into account in deciding whether the battle was worth it. Money is not the sole governing criterion." (para 31)
These comments were expressed as an indication of the correct approach in law, which was then applied to the facts of the particular case in the following paragraph:
"32. It follows that Judge Knight was correct in looking at the case broadly. He was entitled to take into account that the extra £51 gained was more than offset by the irrecoverable costs incurred by the claimant in continuing to contest the case for as long as she did. He was entitled to take into account the added stress to her as she waited for the trial and the stress of the trial process itself. No reasonable litigant would have embarked upon this campaign for a gain of £51."
President of the Queen's Bench Division: