Case Alert - [2016] EWHC 1528 (Ch)  

Interest after the date of acceptance should be excluded when deciding if a Part 36 offer has been beaten

Anthony Gold for claimant, Caytons and Plexus Law for defendants

One of the issues in this case was whether the claimant had bettered its Part 36 offer. On the facts of the case, the claimant had only beaten the offer if interest was added to the offer from the expiry of the date for its acceptance up until the date of judgment.

CPR r36.5(4) provides that a Part 36 offer will be treated as inclusive of all interest until the date for acceptance expires (or 21 days have expired since the offer was made). HHJ Pelling QC held that "the only interest that is material is that included or deemed included within the offer". Interest accruing after the end of the date for acceptance up until the date of judgment was not to be taken into account when deciding if the offer had been beaten: "If it was otherwise then whether an offer from a claiming party should be accepted by a defending party would depend not on an analysis of liability in respect of the claim but what in many cases will be entirely unpredictable namely the date when a trial takes place and what is perhaps even more unpredictable, when judgment will be handed down".

COMMENT: This decision reaches the same conclusion as the Court of Appeal in Stephen Blackman v Entrepose (2004), which was decided before the changes to the Part 36 rules in 2007 (and in 2015).