The claim related to the alleged infringement of a patent. There had been a split trial, with liability being tried first. The court considered the costs implications.
Held: Henderson J said: ‘Where there is a split trial (which I understand to be the usual practice in intellectual property cases where infringement is alleged) the question arises whether disclosure of (a) the existence, and (b) the terms, of any Part 36 offer should be made to the court after it has ruled on liability in favour of the claimant, with the consequence that a further trial on quantum will take place (unless, of course, the parties are able to settle the issue of quantum in the meantime, which I believe to be in practice the most usual outcome).
A literal reading of CPR Rule 36.13(2) would suggest that even the existence of a Part 36 offer must not be communicated to the trial judge until the second stage of the case has been decided, subject only to the three exceptions contained in paragraph (3), of which the only material one for present purposes is ‘where the offeror and the offeree agree in writing that it should not apply’. That this is indeed the correct construction of the rule appears to be confirmed by contrasting it with the previous version of the rule, which dealt expressly with the case of a split trial and permitted disclosure of the fact (but not the terms) of a Part 36 offer where the issue of liability had been determined on a split trial and where the existence of the offer might be relevant to the costs of that issue.’
Henderson J
[2011] EWHC 602 (Ch)
Bailii
Civil Procedure Rules 36
England and Wales
Updated: 26 October 2021; Ref: scu.430654
