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Kunaka v Barclays Bank Plc, 16 July 2010

17 May 2011
The issues

Part 36 – litigant in person – duty to advise.

The facts

The Claimant and Barclays Bank had a dispute. An issue as to costs arose.

In March 2010 the bank had made an offer to the Claimant under Part 36 in the sum of £35,000. That offer was not accepted by Mr Kunaka who was unrepresented. After various counter offers were made by the Claimant and some negotiations took place, Mr Kunaka emailed the bank on 13th July accepting the offer of £35,000. In particular a dispute arose as to whether costs consequences should take effect as from 5th July, which Mr Kunaka said they should, or from the 6th April, being 21 days after the offer was made. Mr Kunaka said they should take effect from the 5th July. It was on the earlier date that the bank, in rejecting the most recent of Mr Kunaka’s offers, reminded him that the offer remained open for acceptance.

The decision

This was an exceptional case. This was not litigation conducted as between solicitors or trained lawyers, who could be expected to know that the ordinary rules of offer and acceptance did not apply to Part 36 offers. When the bank wrote on the 6th July* reminding Mr Kunaka that the offer remained open, they were pointing out to him that under the Rules, the offer was still open for him to accept, but they did not point out to him that the consequences of this would be that he would only get costs to the 6th April and would be liable to the bank for their costs thereafter.

The Court had a discretion under Rule 36.10(5) and it was open to the Court to assess what the fairness of the situation demanded. It was unfair that the full consequences of Part 36 should be visited on Mr Kunaka, who was a litigant in person. The Order would be that Mr Kunaka should not be liable for the bank’s costs from 6th April onward but that there should be no Order for costs between the parties thereafter.

Application granted.

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