FKJ v RVT

Whether an unaccepted Part 36 offer may be disclosed to an interlocutory judge is a fact-sensitive question. The court did not resolve the general point. An application may properly be refused where the offer is immaterial to the issues before the interlocutory court and disclosure would be unfair. A settlement figure does not ordinarily establish the value of the claim for Jameel or costs-budgeting purposes. A genuine settlement offer may reflect the claimant’s desire to avoid litigation risk, and may address non-monetary relief whose value is not captured by the monetary sum. Interlocutory decisions will generally be made by reference to the issues likely to arise at trial, where Part 36 offers are ordinarily inadmissible.

The claimant brought a misuse of private information claim against three defendants. The defendants counterclaimed in connection with earlier Employment Tribunal proceedings. The claimant made an unaccepted Part 36 offer covering both the claim and counterclaim.

The defendants applied for permission to refer to the offer for case management, costs budgeting and their pending strike-out or summary judgment application. Senior Master Fontaine refused the application. The defendants appealed, arguing that the Master had misdirected herself concerning CPR 36.16, without-prejudice principles and the court’s case-management powers.

The central issue was whether, and in what circumstances, an unaccepted Part 36 offer could be disclosed to an interlocutory judge.

1. The appeal was dismissed. Under Part 52 of the Civil Procedure Rules, the question was whether the Master’s decision was wrong in outcome or unjust because of serious procedural or other irregularity.

2. The court declined to determine the general relationship between CPR 36.16 and interlocutory case-management powers. The authorities supplied no definitive answer, and the defendants accepted that any permission to rely on a Part 36 offer would at least be fact-sensitive.

3. On the facts, the Master was entitled to conclude that the offer was irrelevant to the proposed purposes. The settlement sum concerned the monetary element of the claim and also reflected settlement of a substantial counterclaim, together with undertakings concerning publication, dissemination, use and retention of private information and future communications.

4. A Part 36 offer must be a genuine attempt to settle the proceedings under CPR 36.17(5)(e). Its amount may therefore represent a claimant’s willingness to compromise to avoid litigation risk rather than the true value of the claim. In a misuse of private information claim, non-monetary relief and vindication may be important components of value.

5. The Master’s conclusions were rational and within the range of decisions properly open to her. Interlocutory courts will rarely need to know the existence or terms of an unaccepted Part 36 offer where liability, quantum and admissions remain unresolved, because the final trial judge will ordinarily be unable to consider it under CPR 36.16.

• High Court (Queen’s Bench Division): Senior Master Fontaine refused the defendants’ application on 15 March 2021. The High Court dismissed the appeal.