Party could not tell interlocutory judge about part 36 offer, High Court rules

The High Court has rejected an appeal against a master’s decision not to allow a party to refer to a part 36 offer they had rejected for the purposes of an interlocutory hearing.

However, while Mrs Justice Collins Rice said that Senior Master Fontaine had been correct in this instance, there appeared to be no authority on the general principle of whether rule 36.16 meant the fact and terms of an offer could or should not be communicated to an interlocutory judge.

She said: “Such authorities as were cited to me provide limited assistance, analogous at best. Unless there are clearer authorities I was not shown, I am inclined to agree that the question of principle remains outstanding, however surprisingly.

“In an appropriate case, it may be necessary to resolve that question definitively one way or the other. I do not, however, consider the present appeal to be that case.”

FKJ v RVT & Ors [2022] EWHC 411 (QB) started off as an unsuccessful employment tribunal claim by a newly qualified solicitor, who then issued a claim in misuse of private information. The defendants responded with a defence and substantial counterclaim alleging malicious prosecution of the earlier proceedings. Soon after, they applied for summary judgment on both claim and counterclaim.

The respondent solicitor had made a part 36 offer to settle, which was not accepted, and the defendants applied for an order that declared they could refer to the offer for the interlocutory hearing purposes of case management, costs budgeting and the strike-out/summary judgment application.

Senior Master Fontaine rejected it, deciding that she had no clear legal basis for granting the application and, in any case, it would serve no practical purpose and be unfair, on the facts of the case, given that damages were only part of what a claimant was looking for in misuse of private information claims.

On appeal, Collins Rice J held that the master’s conclusions were “understandable, rational, and well within the range of decisions properly open to the master”.

She went on: “She clearly gave her mind to the substance and merits of the application, and reached conclusions supported by evidence and reasoning.

“An interlocutory court will not need to know, or be misled by not knowing, the existence and terms of this offer, simply because they are not material to the questions that will be before it. So, any doubt about the fairness of doing so would be resolved in favour of the offeror.”

Collins Rice J said one of the reasons there may be no definitive authority dealing with the question of principle raised in the case was that “it may be rare that the existence and terms of a part 36 offer are relevant to proportionality decisions of this sort at the interlocutory stages of a case”.

She explained: “Where no admissions or payments have been made, or liability or quantum in any way resolved or conceded, case management decisions – and indeed many other interlocutory matters – have to be dealt with on the basis of a forward look to what will be before, and what may have to be decided by, the final trial judge.

“Other than in the limited cases provided for in rule 36.16(3), the fact or terms of a part 36 offer will never be before that judge. So an interlocutory judge will rarely need to proceed on any other basis.”

Simon Browne QC (instructed by Bloomsbury Law) for the appellants. Adrienne Page QC and David Hirst (instructed by Taylor Hampton) for the respondent.

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Published date
03 Mar 2022

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