A Counterclaiming Defendant Can Make A Valid "claimant's" Part 36 Offer

In a recent decision, the High Court has confirmed that a party can obtain the costs benefits of making a "claimant's" Part 36 offer in relation to its counterclaim, even though it is not formally the claimant in the litigation. The party's role in making the offer and the terms of the offer are more important than its title in proceedings: The Huntsworth Wine Company Ltd v London City Bond Ltd [2022] EWHC 97 (Comm).

Under CPR 36.17, where a claimant obtains a judgment that is at least as advantageous as its own Part 36 offer, the court must (unless it considers it unjust to do so) award the claimant costs on the more favourable indemnity basis from the date on which the relevant offer period expired, together with certain other favourable consequences. On the other hand, if a defendant has made a Part 36 offer that the claimant fails to beat, the defendant is entitled to its costs on the standard rather than indemnity basis from the expiry of the relevant period