A claimant's part 36 offer that gave a 9% discount was "sober and realistc"
Here we have another case where the court considered an argument that it was “unjust” for an unsuccessful defendant to face the normal Part 36 consequences when they had failed to beat a claimant’s Part 36 offer. This judgment shows how difficult an argument this is to sustain, with the burden being on the defendant here to establish “injustice”. None of the arguments put forward by the defendant succeeded. The concession of 9% of the claim was not “tokenistic and illusory” in a claim that was very strong.
Published: July 13th, 2026
4 min read
Judge: “I judge that a percentage settlement offer in the early 90s was justified here given the strength of the claimant’s case. He had a rational and reasonable basis to conclude that his prospects were strong and thus a discount of just under 10 per cent was justified. I do not accept the submission that because the decision on recognition and enforcement is a (yes/no) binary one that a high offer is inappropriate. Binariness is inherent in recognition and enforcement claims. For my part, the more pertinent factor is the strength of the claim. Here Mr Timokhin’s claim was very strong. It was reasonable for him to take that into account at setting a high offer level. That did not render the offer tokenistic and illusory, but sober and realistic.”
Key practice points
This case serves as another reminder as to how difficult it is to escape from the normal consequences of failing to beat a Part 36 offer. The fact that the decision is “binary” is not a good reason, nor is the fact that there was “only” a 9% discount. The defendant was ordered to pay additional interest, costs and the additional 10% in damages.
The case
Timokhin v Timokhina [2026] EWHC 1194 (KB) Mr Justice Dexter Dias.
The facts
The judge had earlier given a judgment ruling the Russian judgments should be recognised and enforced in the total of £417,416.67. The claimant had made a Part 36 offer in June 2025. The claimant offered a 9% discount on the full value of his claim. The offer was not accepted and the claimant went on to succeed for the claim’s full value. The defendant resisted an order that the claimant should receive the full Part 36 benefits.
What happened - in a nutshell
The judge rejected the defendant’s arguments. The claimant’s offer was a reasonable one given the strength of his position. The claimant gained additional interest, costs on the indemnity basis from the date of the expiry of the relevant period and a 10% additional payment.
Comment
It is of course possible to make a percentage offer on liability under CPR 36.2 (3) and in my claimant days I utilised this often to good effect. I am surprised it is not a tactic more regularly utilised by claimants. To be valid certain conditions apply. It has to be genuine and not illusory . Consequently a derisory discount (such as 99.9%) would not be regarded as a genuine attempt to settle a liability issue and would not trigger adverse consequences for a defendant. Of course the tactic is open to a defendant as well so in a case where for instance primary liability was almost certain to attach but where there is a strong argument for contributory negligence a part 36 offer on liability of say 75% may well be accepted by the claimant concerned about the costs risk.
In the present case a 91% offer which was rejected by the defendant did trigger the adverse costs and interest consequences. Where exactly the line would be drawn (would 95% have been accepted as genuine?) is not clear however. Much may depend on the apparent strength of the particular case.
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