Beasley v Alexander

Under CPR rule 36.13(2), the fact of a Part 36 offer must not be disclosed to the trial judge until the case has been decided. In a split trial, “the case” means the action or proceedings as a whole, not merely the first stage. The rule therefore prevents disclosure after a liability trial where issues such as damages remain unresolved, unless one of the specified exceptions applies. The court should consequently reserve costs where disclosure of the offer is prohibited, because it cannot properly exercise its costs discretion without knowing the relevant offer.

The claimant succeeded at a trial on liability arising from a road accident. Issues of damages remained to be determined. The parties could not agree the amount of a payment on account of costs, and the defendant relied on CPR rule 36.13(2), contending that the court could not be told whether a Part 36 offer existed until the whole action was decided.

The claimant argued that “until the case has been decided” could include the conclusion of the liability stage of a split trial. The central issue was the construction of that phrase and whether the court could make an order for costs after deciding liability but before deciding damages.

1. The court declined to make an order for costs at the conclusion of the liability trial. The prohibition in CPR rule 36.13(2) applied, and the court could not be informed of the position concerning Part 36 offers.

2. “The case” in rule 36.13(2) meant the action or proceedings. It did not mean part of the case. The wording could not therefore be construed as referring to the conclusion of only one stage of a split trial.

3. The contrast with the previous rule 36.19 supported that construction. The former rule expressly addressed a situation in which liability had been determined before assessment of the amount claimed and permitted limited disclosure in specified circumstances. That exception had been removed when the present rule was introduced. If the Rules Committee had intended the present rule to permit disclosure after liability had been decided, different wording would have been required.

4. The decision in HSS Hire Services Group plc v BMB Builders Merchants Ltd [2005] EWCA Civ 626, [2005] 1 WLR 3158 supported reserving costs where a Part 36 payment or offer could not yet be evaluated against the final outcome. The reasoning applied with particular force because the court could not know the amount or effect of the offer.

5. The court recognised that the result was unsatisfactory where an offer concerned only contributory negligence. Policy considerations might favour dealing with liability costs immediately, and knowledge merely that an offer existed would not necessarily affect the trial judge. Those considerations could not overcome the clear wording of the rule.

First-instance decision. No prior appellate history was stated in the judgment.