Christopher Bell v Commissioner of Police of the Metropolis

Where a claimant beats a Part 36 offer, the court must make the rule 36.17(4) orders unless doing so would be unjust. The court must assess all the circumstances, including the offer, timing, available information, settlement conduct and whether the offer was genuine. Enhanced interest may be non-compensatory and may reflect unreasonable litigation conduct, prolonged distress and disruption to public resources. The maximum rate may apply to non-pecuniary damages. Indemnity costs and enhanced interest may extend to a late-arising loss claim where the defendant was on notice of the broader claim and suffered no unfairness. A payment on account of 90% of budgeted costs was appropriate, particularly where indemnity costs applied.

The claimant succeeded in claims under the Human Rights Act 1998, section 6 and in negligence arising from the abduction of his young son. In the earlier merits judgment, [2024] EWHC 379 (KB), the court awarded £137,999.49 in damages.

This judgment determined consequential matters on written submissions. The claimant had made two Part 36 offers before trial and obtained judgment at least as advantageous as both. The issues were enhanced interest on damages, an additional sum, indemnity costs, enhanced interest on costs and a payment on account of costs.

1. Part 36 consequences. The claimant beat offers made on 30 August 2019 and 17 June 2020. The relevant period expired on 19 September 2019. Under CPR 36.17(4), the court was required to make the specified orders unless it was unjust to do so, having regard to CPR 36.17(5).
2. Enhanced interest. Applying OMV Petrom SA v Glencore International AG [2017] EWCA Civ 195, the court considered the lengthy period after the offer, unreasonable litigation conduct, disclosure and evidential failures, lack of meaningful settlement engagement, the claimant’s prolonged distress and public resources spent on the litigation. A non-compensatory element was permissible. Enhanced interest at 10% above base rate was justified on £104,399.48, including non-pecuniary damages, from 19 September 2019. The £33,600 element relating substantially to estimated future losses was excluded.
3. The claimant was entitled to an additional sum of £10,439.95 under CPR 36.17(4)(d).
4. There was no injustice in ordering indemnity costs and 10% enhanced interest on costs after 19 September 2019, including in relation to the later £33,600 claim. The defendant had earlier been notified of substantial potential pecuniary losses and suffered no unfairness.
5. A payment of 90% of the approved costs budget was appropriate. Indemnity costs strengthened the justification because the budgetary limitations in CPR 3.18 no longer applied.
6. The defendant was ordered to pay the specified interest, additional sum and £235,951.02 plus VAT on account of costs.

The merits were determined in the same litigation by the High Court in [2024] EWHC 379 (KB). This judgment determined the consequential matters arising from that decision.