On 10 March 2016, Nicholas Bacon QC and Adam Walker succeeded on behalf of the Claimant in the Court of Appeal in an appeal that dealt with the relationship between open payments made following admissions and offers made pursuant to CPR Part 36.

Having succeeded at the 5-day trial of a commercial property dispute the Claimant was awarded his costs to be assessed on the standard basis. The Defendants appealed the costs order to the Court of Appeal on the basis that the judgment obtained by the Claimant was lower than the aggregate of (a) a payment made following admissions made in the Defence, and (b) a Part 36 offer that pre-dated the Defence and the payment, but which had not been withdrawn. The Claimant cross-appealed on the basis that he should have been awarded his costs with assessment on the indemnity basis, relying on Gomba Holdings Ltd v Minors Finance Ltd [1993] Ch 171.

Before the Court of Appeal the Defendants argued that Part 36 was a self-contained code (Gibbon v Manchester City Council [2010] EWCA Civ 726), that Part 36 offers remain open for acceptance until they are withdrawn and that as the Part 36 offer in this case had not been withdrawn it remained open for acceptance by the Claimant after he had received the benefit of the payment made following admissions. The Defendants argued that the obiter dicta of Moore-Bick LJ in LG Blower Specialist Bricklayer Ltd v Reeves [2010] EWCA Civ 726 supported that position.

The Court of Appeal (Black LJ, Gloster LJ and Briggs LJ) dismissed the appeal and allowed the cross-appeal, awarding the Claimant his costs on the indemnity basis. It was held that while the open payment following admissions was not the same as an interim payment under CPR r.25.1(1)(k), had the Claimant accepted the offer he would have been required to give credit for the open payment following admissions and he would not have been entitled to the sum of them both. As such the Claimant had beaten the Part 36 offer, which was not enhanced in any way by the payment. The Court of Appeal went on to decide that the Claimant was correct that he was entitled to his costs on the indemnity basis in light of Gomba Holdings and the terms of the commercial lease in question.

Reported as: Littlestone & Ors v Macleish [2016] EWCA Civ 127

The case can also be found reported on Lawtel.

Related practice areas

For help or advice please call +44 (0)20 7242 3555 or complete 
the form below

A member of the Clerking team will help you resolve your request.

  • This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
  • For Direct Access please fill out the form on the Direct Access page.

  • This field is for validation purposes and should be left unchanged.

Frequently asked questions

Yes, please call Chambers mainline number +44 (0)20 7242 3555 and you will be directed to the out of hours phone lines.

As a direct access client, please visit our direct access page and complete the initial form, a member of the clerking team will then be in touch to discuss the next steps.

Choosing the right barrister for your case can be difficult, with so many to choose from. Our clerks will be happy to guide you with your choice. Their wealth of knowledge and experience will help you decide the right barrister not just for the case but someone who will work with you.

Some barristers have the ability to “conduct litigation” for direct access clients. Our clerks will be able to assist you as to which of our members are trained and accredited to do so.

Please visit our direct access page for the initial steps on instructing a barrister, or contact our clerks on +44 (0)20 7242 3555.

Search

Shortlist Builder

Close

Select the legal expertise that you would like to download or add to the shortlist

Download Add to shortlist
Shortlist close
Title CV Email

Remove All

Download


Click here to email this list.