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Acceptance of a Part 36 did not prevent claimants from relying on its defence

8 November 2016

The Commercial Court has refused to grant summary judgment in relation to a claim which it held had not been included in a Part 36 offer which was subsequently accepted.

In Marathon Asset Management LLP and another (C) v Seddon (D1) and others (D2-6) (2016) EWHC 2615 (Comm) Cs brought claims of conspiracy (common design) and misuse of confidential information against six Ds who were former employees and services providers of one of the Cs. D6 made a counterclaim against the Cs which was defended.

A Part 36 offer was made by all six Ds which expressly stated that it did not concern the counterclaim and only included the common design claim.

D6 applied for summary judgment against the Cs stating that despite their offer only referring to the common design claim, it covered all allegations which the Cs’ defence was based on and by accepting the offer the Cs were accepting that these allegations had also been settled.

Mr Justice Leggatt held that it was necessary in this case to consider the terms and context of the offer and after taking into account the structure, express terms and considerations of commercial sense, he concluded that the acceptance of the Ds’ offer did not prevent the Cs relying on the factual allegations as part of the claim.

This case demonstrates the need for absolute clarity when making an offer and making sure that any offer properly reflects the position on the claims that are being made, including any Part 20 claim.

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