Whether judge can be shown Part 36 offer when some issues in a case have been decided

CPR r36.16 provides that a Part 36 offer cannot be shown to a judge (and the fact it has been made cannot be disclosed either) "until the case has been decided". However, where "any part of, or issue in, the case has been decided" (which was the case here) and "the Part 36 offer relates only to parts or issues that have been decided" the judge may be told that about that Part 36 and its terms. The judge may also be told about the existence of any other Part 36 offers (ie ones which do not relate solely to the decided issues), but not the terms of those offers (unless certain other conditions are met (and they were not met in this case)).

The Part 36 offers made by the defendants in this case did not relate only to the issues which had been decided. The claimant applied for an order that the defendants pay its costs but the defendants argued that costs should be reserved until the end of the case (when the judge would be shown the terms of all the Part 36 offers).

The judge agreed that costs should be reserved. The defendants could not be criticised for having failed to make a Part 36 offer which related only to the issues which had been decided: "Even where there is a direction which splits the trial between issues of liability and quantum, or in some other way directs the trial of specified issues, it is open to a defendant to make a Part 36 offer which deals with the whole case and to expect the court to take that Part 36 offer into account when the court eventually deals with all of the costs of the action including the costs of the trial on liability, or on specified issues only".

COMMENT: Prior to 6th April 2015, there was some doubt as to whether a judge could be told about a Part 36 offer in a split trial, for example after the issue of liability had been decided. Since that date, the judge can be told about the existence of, and terms of, a Part 36 offer where that offer relates solely to the issue which has been decided. The White Book has queried what would happen where a party makes two or more Part 36 offers, one of which relates to issues which have been decided, and one of which relates to issues still being disputed. It is unclear whether the issue of costs will be reserved (as it was in this case, where the offer did not relate to issues which had been decided), or whether a judge would be inclined to make an immediate costs order at the end of the split trial.