Margin By Which Party Beat Own Part 36 Offer Not Relevant In Determining Costs Consequences

The High Court has found that, where a claimant beat its own Part 36 offer by only a very small margin relative to the size of the claim, that was not a relevant factor in determining whether it would be unjust to award the claimant the Part 36 costs consequences in full: JLE v Warrington & Halton Hospitals NHS Trust [2019] EWHC 1582 (QB).

The judge referred to the widely criticised decision in Carver v BAA plc [2008] EWCA Civ 412, which meant that a party who beat an opponent's offer by only a small margin could be penalised in costs as if it had failed to beat the offer. That decision was effectively reversed by the Civil Procedure Rules Committee following a recommendation by Lord Justice Jackson, so that the rules now expressly provide that an offer will be beaten if the court's award is better in money terms by any amount, however small. In the present case, the court was keen not to re-introduce Carver – or in effect the flip-side of Carver – by depriving the