Costs Law Brief

DISPUTES OF PRINCIPLE

There has always been a problem when a party to litigation has refused to accept a “without prejudice save as to costs” offer made by the other side but narrowly beats it at a contested hearing. Arguments about the effect of CPR 36 or (if the offer is made in detailed assessment proceedings) CPR 47.18 and 19 follow, usually with each side claiming entitlement to the costs.
Naturally, the offeree will argue that the rules should be strict and that to exceed the offer even by a narrow margin justifies proceeding to court. The offeror will argue that the margin by which the offer has been beaten is plainly a waste of the (often very significant) costs expended to achieve that result. The resolution of such a dispute of principle is of huge significance.
The answer recently delivered by the Court of Appeal is that all the circumstances should be considered