The parties had disputed liability for personal injuries in a road traffic accident. The court had held the defendant liable, but held over the assessment of damages. The defendant sought to refer to the fact of his offer of settlement when assessing the costs of the liability trial.
Held: CPR r 36.13(2) did not permit a court to be told of a Part 36 offer and consequently go on to deal with the question of costs at the conclusion of the first part of a split trial: ‘Until it was known how the payment compared with the final judgment no decision as to costs could be made. It was important for the court to know that there had been a payment into court because it would then know that no order as to costs should be made at that stage. Equally it would be important for a court to know that no payment in had been made because then it could exercise its discretion as to the costs of the liability trial in that knowledge. I should proceed on the basis that when the present Rule 36.13 was formulated the Civil Procedure Rule Committee had the decision in HSS in mind.’
and ‘ as to the construction of the words in Rule 36.13(2) ‘until the case has been decided’ . . I am satisfied that the words have a clear meaning. It is clear that ‘the case’ is used in the sense of ‘the action’ or ‘the proceedings’. The reference to ‘the case’ cannot be construed as referring to part of a case.’
Sir Raymond Jack
 EWHC 2715 (QB),  WLR (D) 272
Civil Procedure Rules 36.13(2)
England and Wales
Applied – HSS Hire Services Group Plc v BMB Builders Merchants Ltd and Another CA 24-May-2005
The claimant licensee alleged that the license contract had been repudiated by the defendant licensor. The claimant succeeded at the trial of liability. The defendant had made a payment into court. The judge was told of the payment but not of the . .
Cited – Garratt v Saxby CA 18-Feb-2004
There had been a Part 36 offer to settle the action. It was disclosed inadvertently to the judge.
Held: There had been no serious procedural irregularity, and fairness and justice did not require a rehearing before different judge. . .
Cited – Ted Baker Plc and Others v Axa Insurance Uk Plc and Others ComC 29-Jun-2012
The court had determined several preliminary issues in favour of the claimants, but issues as to liability remained. The court considered whether and on what basis it was proper now to make an order for costs.
Held: Eder J said: ‘As to the . .
Liability – Beasley v Alexander QBD 27-Jul-2012
Lists of cited by and citing cases may be incomplete.
Costs, Litigation Practice
Updated: 12 January 2022; Ref: scu.464786