James Deacon & Ben Savery set out the lessons to be learnt from recent Pt 36 case law
A raft of recent cases has underlined the importance of making Pt 36 offers that are strategic, timely and correctly formulated.
Question 1
Can you make an offer to settle for a percentage of liability that could never be awarded in practice and is there a minimum reduction you should make?
Answer: The High Court has clarified that you can make such an offer and a modest reduction may suffice.
In Jockey Club Racecourses Ltd v Willmott Dixon Construction Ltd [2016] EWHC 167 (TCC), [2016] All ER (D) 90 (Feb), the defendant agreed to design and build a grandstand at Epsom. The roof failed and was later found to be defective. The club issued proceedings for the costs of repair and business interruption. It later made a Pt 36 offer to settle liability at 95% of the damages “to be assessed”. Willmott Dixon did not respond. It was directed that there would be a split trial but the defendant later conceded liability before trial.
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