In Dutton v Minards  EWCA Civ 984 prior to the commencement of proceedings the Defendants had made an offer to pay a sum in full and final settlement of the claim and any counterclaim that might be made. That offer purported to be made pursuant to Part 36 but contained an offer to pay the Claimants’ reasonable costs. Following issue the Claimants made a Part 36 offer whereby they offered to accept a lower sum in full and final settlement of the claim and counterclaim that had by then been made. The Defendants accepted the offer 1 minute after the expiry of the 21 day period following the making of the offer and applied for an order under CPR 36.10(4) that the Claimants should pay the entirety of the Defendants’ costs incurred after 21 days following their earlier offer. At first instance, Andrew successfully argued that the Defendants should pay the entirety of the Claimants’ costs – which would have been the consequence of the Defendants accepting the Claimants’ offer within 21 days notwithstanding the earlier higher offer. The Court of Appeal, while holding that the Defendants’ offer was a valid Part 36 offer, dismissed the appeal accepting that there was no basis upon which to interfere with the exercise of the first instance judge’s value judgment and exercise of discretion. Judgement: dutton_v_minards__judgment.pdf
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