Part 36 and costs liabilities when there are multiple defendants
Making a Civil Procedure Rules (CPR) Part 36 offer is one of the most useful tools in litigation. It enables a party to make a formal settlement offer knowing that if the opposition rejects it and the offeror goes on to do better at trial, the opposition will have to pay the offeror’s costs from a prescribed date — as well as interest and potentially an additional discretionary payment. Not surprisingly, a properly drafted Part 36 offer letter and the consequent risk of costs liabilities places considerable pressure on a recipient to consider the offer seriously.
But what happens when there are several defendants? If one of the defendants accepts a Part 36 offer and settles and the others do not, who pays the offeror’s costs? Does the defendant have to pay the whole of the costs in the litigation — or just the elements that relate to its own defence? And what about the disbursements such as experts’ fees and travel expenses?
This was the issue that arose recently in the case of Haynes v Department of Business Innovation and Skills…
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