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Beasley v Alexander, High Court, 9 October 2012

1 November 2012
The issues

Costs – Part 36 offers – split trials – whether order for costs should be made at the conclusion of the split trial where a Part 36 offer may have been made

The facts

The claimant had a road traffic accident in which he suffered severe injuries. Liability was ordered to be heard first. At the trial, judgment was entered in favour of the claimant without any finding of contributory negligence. The question arose as to whether the judge could deal with costs at that stage. Part 36 provided (Part 36.13(2)) “The fact that a Part 36 offer has been made must not be communicated to the Trial Judge … until the case has been decided”.

The decision

The words used had a clear meaning. It was clear that “the case” was used in the sense of ‘the action’ or ‘the proceedings’. It could not be construed as referring to part of the case. If the present rule had been intended to refer to liability to being decided as well as the case being decided, different wording would have been used. That wording would have had to distinguish between offers which related to the whole case and offers which related solely to liability. That conclusion was reached with regret because if the only offer or offers related to the percentage of contributory negligence, the court would have been in a position to deal with the costs of liability and there were good policy reasons for so doing. cudges commonly carried on their business in the knowledge that offers of settlement might have been made and that knowledge did not affect their judgment. The danger came when the judge knew what the offer was. By reason of the rule, the judge could not be told of the position as to Part 36 offers and therefore could not deal with costs.

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