25 November, 2019
Hochtief (UK) Construction Ltd & Anor v Atkins Ltd  EWHC 2109 (TCC)
The Claimant succeeded at trial in a claim for damages in the sum of £802,475.33 and interest of £77,372.41. The Claimant succeeded on a claim concerning a bridge, but lost on a smaller claim relating to an underpass.
The Claimant had made a Part 36 offer, including interest, in the sum of £875,000.00 in the early stages of the litigation. At trial the Claimant beat its own offer by £4,847.00, a small sum in the context of the claim.
The Court ordered the Defendant to pay indemnity costs from the last date for acceptance of the Part 36 offer and interest on those costs, additional interest and an additional sum of £65,000.00. A 15% deduction was made from the costs awarded to take account of the failure of the underpass part of the claim.
The Court made it clear that Part 36 rules applied even when the difference between the rejected offer and the final award was relatively small. The additional amount to pay was significantly more than if no Part 36 offer had been made and was a further blow for the losing Defendant.
The ruling serves as a warning to all litigants that there could be tough outcomes for failing to beat a Part 36 offer at trial.
A Part 36 offer is an offer made under the Court rules by either the Claimant or Defendant and is a tactical step designed to convince the other party to settle the claim without the need to go to a final trial hearing. Part 36 is intended to provide an incentive to Claimants to make and for Defendants to accept appropriate offers to settle a claim.
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