In April 2014, the claimant made a Part 36 offer which was expressed to be in pounds (£3.7 million approx.), although its claim was in US dollars. The claimant was awarded USD 5.4 million approx. at trial, which at today's exchange rate is equivalent to £4.1 million approx. Leggatt J noted the sharp fall in sterling after the UK's referendum on 23rd June 2016, which had the effect of significantly reducing the dollar value of the Part 36 offer. The defendant argued that the Part 36 offer had not been beaten because the loss was suffered in US dollars and that the value in dollars when the offer was made was USD 6.3 million and thus substantially more than the judgment sum.
That argument was rejected by the judge. He held that the relevant time for comparing a Part 36 offer and the judgment sum is on the date when the order containing the court's judgment is made: "This conclusion is also logical because, as [the claimant] points out, its Part 36 offer was never withdrawn and remained open for acceptance at any time …. Thus, [the defendant] could in principle have accepted the offer at any stage, if it came to the view that the offer had become sufficiently attractive – for example, because of … movements in exchange rates, or for any other reason".
However, that did not mean that the value of the Part 36 offer at the time it was made was completely irrelevant: "Its relevance is in considering whether it would be unjust to make orders for interest at an enhanced rate and indemnity costs or to do so for the full period. In making that assessment, the court is required by CPR 36.14(5) to take into account all the circumstances of the case; and it is, in my view, a highly material circumstance that the only reason why [the claimant] has beaten its Part 36 offer is …. that sterling has recently fallen against the dollar".
Here, the claimant would not have beaten its offer if judgment had been entered before 23rd June: it was only "happenstance" that the judgment was not handed down until 30thJune and for that reason it would be unjust to grant enhanced costs benefits for the period between the date on which the relevant period expired until judgment.