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Part 36 offers and preliminary issues: Ted Baker v AXA [2012] EWHC 1779 (Comm)

On Friday 29 June 2012, Eder J handed down his judgment on costs in this case in which Ted Baker had been successful on certain preliminary issues on the scope of coverage of an insurance policy. The most important issue was how the Court was to approach the question of costs in view of the fact that the parties did not agree whether he could be told about the position with regards to Part 36 offers. The Judge reviewed the authorities and considered the wording of the current version of CPR part 36.13, which he regarded as very unsatisfactory. He held that there was no principle that the Court should usually reserve the costs of preliminary issues. He held that but for the possibility that there were Part 36 or other issues on costs, the Claimants should have their costs of the preliminary issues because the Defendants could have admitted them. He refused to construe CPR part 36.13 as providing the Defendants with the permission to inform the Court of the fact of a Part 36 at the end of a preliminary issue trial. However, he held that one of the circumstances that he was entitled to take into account was the possibility of Part 36 or other costs offers. He thus ordered that the question of costs should be reserved but that Claimants should have their costs subject only to any offers of settlement that may have been made.

Jeremy Nicholson KC and James Medd appeared for AXA and their co-insurers, instructed by Kennedys.

The Judgment is available here.


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