Swift v Carpenter – The Importance of Part 36

By November 10, 2020January 28th, 2021Costs

The recent and well anticipated decision in Swift v Carpenter dealt with the issue of whether a Claimant, Ms Charlotte Swift, was able to recover extra compensation for accommodation costs. The Court of Appeal refused the Defendant’s appeal and thus an award for damages in respect of extra accommodation costs stood. Ms Swift recovered a total of £909,903.00.

Prudently, the Claimant’s solicitors had made a Part 36 offer of £800,000.00. The Defendant’s “best offer” was £600,000.00, again made by way of Part 36. Resultantly, the Claimant was entitled to claim an additional uplift on damages. In addition and due to the well placed Part 36 offer made, the Defendant faced a significant costs bill from their unsuccessful attempt in the appellate court.

Lord Justice Underhill, Lord Justice Irwin and Lady Justice Nicola Davies DBE, sitting decided Ms Swift had been successful in her appeal, beating both her own and the Defendant’s Part 36 offers to settle. Ms Swift was awarded the costs of the appeal, on a standard basis, up to July 2019. Indemnity costs should run from that point onwards. Despite submissions from the Defendant, the Claimant was additionally awarded interest at 4.5% on costs and damages. An order for an interim payment on account of costs and interest was made in the sum of £500,000.00. Permission to appeal was also refused.

The above example once again stresses the importance of a well-placed Part 36 offer, especially in matters likely to proceed to appeal. My advice has always been to encourage the making of a Part 36 offer early on. A party who does not entertain the prospect of making any offers by way of Part 36 could – in my view – be considered somewhat negligent.

 

Nick Mercer

Author Nick Mercer

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