Old Park Capital Maestro Fund Limited v Old Park Capital Limited (in liquidation)

Where a Part 36 offer and the judgment are expressed in the same foreign currency, the comparison under Civil Procedure Rules 1998 r 36.17 is made by reference to the currency amounts stated, without converting them into notional sterling equivalents. An option to satisfy the judgment in sterling does not alter that analysis.

An offer for the principal loss may be a genuine attempt to settle where the claimant reasonably regarded the dispute as effectively all-or-nothing and relinquished a realistic prospect of substantial interest. The usual r 36.17 consequences will be displaced only where the particular circumstances make them unjust. Interest under the rule may be compensatory and penal, and the appropriate rate depends on all relevant circumstances.

This was a consequential judgment following the claimant’s successful fraudulent misrepresentation claim against the third defendant in the Trial Judgment. Judgment had been entered for USD4,175,182.99, with interest and consequential matters adjourned.

The claimant had made a Part 36 offer for the same dollar amount, including interest to 25 April 2023. The third defendant disputed whether the offer was a genuine attempt to settle and argued that exchange-rate movements meant the judgment was not at least as advantageous as the offer. The court also had to determine the consequences under CPR 36.17(4), pre-judgment and post-judgment interest, costs, payment on account, and stays.

1. Part 36 comparison. The judgment was at least as advantageous as the offer. Both were expressed in US dollars. Conversion into sterling at the dates of the offer and judgment would be economically unreal and contrary to the principle in Novus Aviation. The sterling payment option did not require a different approach.
2. Genuine attempt to settle. The offer was not an offer of total capitulation. The claimant was entitled to treat the dispute as broadly all-or-nothing, and the offer gave up a realistic prospect of more than $850,000 in pre-judgment interest. It therefore satisfied CPR 36.17(c).
3. Unjust consequences. The defendant’s trial success on some issues, the seriousness of the allegations, and the reasonableness of defending the claim did not make the usual CPR 36.17(4) consequences unjust. The rule is intended to incentivise settlement and avoid an unnecessary trial.
4. Orders under CPR 36.17(4). The court ordered interest on the damages at base rate plus 6%, indemnity costs from 25 April 2023, interest on those costs at base rate plus 6%, and an additional £75,000.
5. Earlier costs and interest. For the period before 25 April 2023, the claimant recovered costs on the standard basis subject to a 15% reduction. Interest on damages and costs for that period was awarded at base rate plus 2%. The appropriate post-judgment rate on the US dollar judgment was 2% above the analogous Federal Funds rate.
6. The court ordered payment on account using the stated 90%, 70%, 85% and 50% assumptions. Following the Court of Appeal’s refusal of the defendant’s permission application and stay application, the claimant was given 21 days to pay sums due to the second defendant and would need to seek any further stay from the Court of Appeal.

The judgment records that both parties applied to the Court of Appeal for permission to appeal against the order following the Trial Judgment. By the date of this judgment, permission had been refused to the third defendant and granted to the claimant on one ground. The defendant’s stay application had also been refused. The claimant’s application for a stay pending the permission decision was therefore spent.