Court of Appeal comments on “near-miss” offers

Weekly Update 43/14 reported the decision in Sugar Hut v AJ Insurance, in which Eder J agreed that the courts should not re-introduce a “near miss” rule following the reversal of Carver v BAA (see Weekly Update 17/08), but went on to distinguish the case on its particular facts (the “near miss” rule stems from the decision of Multiplex Construction v Cleveland (see Weekly Update 40/08), in which Jackson J held that if a party makes a Part 36 offer, or an admissible offer within Part 44, which is “nearly but not quite sufficient” and the other party rejects the offer outright without any attempt to negotiate, then it might be appropriate to penalise the other party in costs).

In this Court of Appeal case (concerning the court’s discretion under Part 44), Jackson LJ took the opportunity to comment on his decision in Multiplex. He noted that many recent judgments have taken his discussion of the principles governing the court’s discretion under Part 44 as a starting point and he therefore emphasised that his comments regarding near miss offers “should now be disregarded”.