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 scope and effect of CPR Part 36.13 it seems to me that two points are relatively clear. First, the prohibition in CPR Part 31.13 (2) applies only to a Part 36 offer. It follows that an offer which is not a Part 36 offer is not caught by the prohibition. I did not understand the parties to suggest otherwise although I should mention that there was some debate during the hearing whether a party who had made an offer of settlement ‘without prejudice save as to costs’ which was not a CPR Part 36 offer could at any stage unilaterally waive the privilege that would ordinarily attach to such offer and voluntarily communicate both the fact and terms of such offer to the court. In principle, I see no reason why that should not be so. However, it is unnecessary to resolve that debate in the present case because it was not suggested by either the defendants or the claimants that any offer that might have been made was of such a type.
Second, although CPR Part 36.13 (2) prohibits the fact of any CPR Part 36 offer being communicated to the court in the circumstances there specified, it does not on its language appear to prohibit the fact that a CPR Part 36 offer has not been made being communicated to the court. Again, I did not understand the parties to suggest otherwise although this may seem somewhat odd if only because if that is right and the court is not told that a CPR Part 36 has not been made then the inference would seem to be that a CPR Part 36 offer must have been made; and this would appear to undermine the prohibition in CPR Part 36.13. Be that as it may, Mr Cogley QC informed the court (without objection from Mr Nicholson QC) that the court could and should proceed on the basis that no CPR Part 36 offer has been made specifically in relation to the preliminary issues.
In any event, I am still ignorant as to whether any more general CPR Part 36 offer has been made. What is the proper approach in such circumstances?
It seems to me (as it did to Henderson J. in AB v CD) that there is a ‘real problem’ here. In my view, there is an urgent need for CPR 36.13 to be reviewed and possibly reformulated in order to deal in particular with the question of ‘split trials’ and the kind of difficulties which have arisen in the present case. However, in the meantime I have to grapple with the rule in its present form. The view tentatively expressed by Henderson J. was that in appropriate circumstances the new wording should be construed as referring to the conclusion of the first part of a split trial so that once that part has ended, it would be permissible to communicate the fact of any Part 36 offer to the court. That interpretation of CPR Part 36.13 (2) has obvious attractions and one which is, I suppose, an interpretation consistent, or at least more consistent, with the overriding objective.
Such an approach was urged by Mr Nicholson QC. In particular, he submitted that it cannot have been the intention of the Rules Committee when recasting the old Rule 36.19 to narrow the circumstances in which the fact of a CPR Part 36 offer has been made; and indeed it was his submission that the intention was to the contrary i.e. to widen such circumstances. Thus, Mr Nicholson QC submitted that in a case such as the present i.e. when the court determines only some preliminary issues and the issue of liability generally is yet to be determined, the fact of any CPR Part 36 offer could not have been communicated to the court under the former Rule 36.19 because none of the exceptions in the then subparagraph 3 (c) would apply. In particular, subparagraph 3(c)(i) on its face only applied when the ‘issue of liability’ had been determined and ex hypothesi such liability has not yet been determined.
Mr Nicholson QC submitted that one of the reasons for the change of wording in the new CPR Part 36.13 must have been to deal with that situation and, in effect, to permit the fact of any CPR Part 36 offer to be communicated to the court after the determination of some preliminary issues but before the determination of liability generally. In particular, he submitted that the words ‘until the case has been decided’ in the present CPR Part 36.13(2) are different from and much less specific than the wording of the old Rule 36.19(2) (‘until all questions of liability and the amount of money to be awarded have been decided’) – a point which obviously impressed Henderson J. However, for my part, it seems to me that the interpretation which Henderson J. tentatively suggested and urged here by Mr Nicholson would stretch the present wording beyond its proper limit.
In the event, it seems to me unnecessary to decide this issue i.e. the scope and effect of CPR Part 36.13 (2) and I propose to proceed on the assumption in favour of the claimants that the prohibition applies in the present case.’

Judges:

Eder J

Citations:

[2012] EWHC 1779 (Comm)

Links:

Bailii

Cited by:

CitedBeasley v Alexander QBD 9-Oct-2012
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 . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 03 November 2022; Ref: scu.461820