Additional payment under Part 36 — discretionary not a right

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One of the amendments brought in by the Jackson reforms is the additional payment of up to £75,000 to be made to a claimant by the losing defendant if a claimant makes an offer under Part 36 of the Civil Procedure Rules (Part 36), which it then beats at trial.

Such a payment is to be made pursuant to Part 36.14(3)(d) unless the court considers it unjust to do so. Part 36.14(4) sets out some of the circumstances that should be taken into account when determining whether it is unjust to make an order. Those circumstances include the terms of the offer, at what stage in the proceedings it was made (including how long before the trial started), the information available to the parties at the time the offer was made and the conduct of the parties in giving or refusing to give information so that the offer could be evaluated.

In Feltham v Bouskell [2013] EWHC 3086 (Ch), the defendant argued it would be unjust to award the additional sum…

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