Zero damages offer is a genuine Part 36 offer

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Article

17 October, 2019

MR v Commissioner of Police for the Metropolis [2019] EWHC 1970 (QB)

The High Court has ruled that a Part 36 offer to settle a claim for nil damages on the condition that the police admit liability for false imprisonment and assault was a genuine Part 36 offer.

The facts

The appellant was arrested on suspicion of having committed an offence of harassment but released without charge. He issued a claim against the police for false imprisonment and assault. In May 2011, the police commissioner made a Part 36 offer to settle in the sum of £4,000 and provided a letter of apology. The appellant rejected that offer and in September 2012 and May 2013, he made subsequent Part 36 offers to settle for £5,000 together with various condition regarding admitting liability for his unlawful arrest etc. The offers were rejected by the commissioner.

On 20 July 2017, the appellant made another Part 36 offer that the matter be settled for nil damages with an admission of liability, plus reasonable costs.

The matter proceeded to trial and the judge awarded the claimant £2,750 and found that the arrest was unlawful. However, he concluded that it would be unjust to apply the provisions of CPR r.36.17 and made no order as to costs.

The appellant appealed on the issue of costs alone arguing he had achieved a judgment "at least as advantageous" as the proposals in his Part 36 offer of July 2017 for the purposes of r.36.17 (1) (b) and was therefore entitled to his costs.

The judgment

The Court held that the offer to settle for nil damages was a genuine Part 36 offer and therefore he should be entitled to the appropriate costs.

Forbes comment

This case confirms that an offer to settle for nil damages can be a genuine Part 36 offer. However, it should be noted that there was more at stake in this particular case as the nil damages Part 36 offer also included the request for an admission of liability. The Court found that there had been no prospect of resolution without proceeding to trial, he had been vindicated as the Judge found that his arrest was unlawful and the Judge had described him as the 'successful party'. The High Court held that "Giving up any and all claim to a financial remedy is… a significant concession and therefore is a genuine Part 36 offer". It remains to be seen whether the Courts would take the same approach in a claim for damages only.

For more information contact Sarah Wilkinson in our Insurance department via email or phone on 01254 662831. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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