Elsevier Ltd v Munro (Supplementary Judgment)

For the purposes of Civil Procedure Rules 1998, r 36.14(3)(d), whether a claim is monetary depends on the claim in respect of which the advantageous judgment was given, rather than every alternative remedy pleaded. An alternative damages claim does not prevent a claim being treated as non-monetary where the court grants the injunction sought and the damages claim is not pursued.

An additional Part 36 liability is not unjust merely because it has a penal effect. The court must consider all the circumstances, including the offer, its timing, available information and the parties’ conduct. A compressed timetable, a legitimate defence and late availability of evidence may nevertheless make the additional liability unjust.

This supplementary judgment followed the trial judgment in which the claimant obtained an injunction restraining the defendant from joining Cengage before expiry of his contractual 12-month notice period on 11 April 2015.

Two consequential matters remained. The claimant sought an additional amount under Civil Procedure Rules 1998, r 36.14(3)(d), relying on a Part 36 offer allowing the defendant to join Cengage from 1 January 2015. The defendant opposed the application and, alternatively, argued that an additional amount would be unjust. He also sought permission to appeal against the approach taken to the scope of the injunction.

1. The claimant’s Part 36 offer was beaten because the injunction obtained restrained the defendant until 11 April 2015, whereas the offer permitted him to join Cengage from 1 January 2015. The judgment was therefore at least as advantageous to the claimant as the offer for the purposes of Civil Procedure Rules 1998, r 36.14(1)(b).

2. For r 36.14(3)(d), “the claim” means the claim in respect of which the advantageous judgment was given. The claimant’s damages claim was pleaded only as an alternative if injunctive relief was not granted. Since the injunction was granted and the damages claim was not pursued, the claim was non-monetary for the purposes of r 36.14(3)(d)(ii), so an additional amount could in principle be calculated by reference to costs.

3. The court had to consider all the circumstances under r 36.14(4), including the terms and timing of the offer, the information available when it was made, and the parties’ conduct in providing information. The ordinary penal consequence of refusing a reasonable offer was not itself unjust. However, the additional amount would also affect costs incurred before the offer and during the 21-day acceptance period. The proceedings had advanced exceptionally quickly, the defendant had a legitimate argument for a shorter restraint, and he did not see the claimant’s witness statements until the final day for acceptance. In those circumstances, imposing the additional liability would be unduly harsh. The application was refused.

4. Permission to appeal was refused. The proposed grounds, including reliance on GFI Group v Eaglestone [1994] IRLR 119, had no real prospect of success.

The judgment states that it was supplementary to the trial judgment in the same action, but gives no appellate history.