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The Maersk Co Ltd v Wilson, Court of Appeal, 25 March 2004

1 April 2004
The issues

Costs – Part 36 Offer – Indemnity Costs.

The facts

The Claimant succeeded in an accident for personal injury against the Defendant Shipping Company. At a late stage in the Trial and in written closing submissions, his Counsel developed a different alleged basis for the Defendant’s liability. That argument succeeded. The Claimant had made a Part 36 Offer, which he had beaten. The Trial Judge ordered costs with interest at base rate (but not above) – the costs to be awarded on the standard basis.

The Claimant appealed.

The decision

1. When the Judge realised he had to decide the case on a new footing, it would have been better for specific warning to have been given to the parties in order that submissions might have been invited.

2. Part 36.21 was not an “all or nothing” provision requiring the Court to make all of the orders envisaged by sub-paragraphs 2 and 3 of that Rule. It provided the Judge with a range of possible ways of marking a failure to meet a Part 36 Offer. In the normal case falling within Rule 21, the Judge might no doubt think it just to make all the Orders. In this case however, he made the limited Order that he made on the basis that the point on which the Claimant had succeeded had not been taken in the pleadings and was not advanced in any obvious way until very late in the day. It was open to the Judge to mark that history in his Costs Order. The Judge had exercised his discretion in a way in which the Court of Appeal would not interfere.

Appeal dismissed.

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