In this personal injury claim, the claimant was awarded damages at trial but on appeal his award of damages was increased. The defendant made two Part 36 offers, both of which the claimant rejected. The claimant failed to beat either offer at trial. However, following the appeal he beat the first Part 36 offer, but not the second. The respondent accepted that the costs order below had to be amended to reflect that the claimant had beaten one of the Part 36 offers. The respondent also conceded that the rules governing Part 36 offers apply to the costs of the proceedings in which they are made, not the costs of the appeal. Nevertheless, the respondent sought to argue that the Part 36 offers could be taken into account under CPR r44 (in particular the Part 36 offer which was not beaten), when assessing who is the real winner on the appeal (ie if the claimant had accepted the second offer, he would have been substantially better off).
That argument was rejected by the Court of Appeal. The second offer had no longer been open for acceptance and so, in order to improve his position, the claimant had had to pursue the appeal. Furthermore, he had already been penalised in costs for failing to accept that offer.