Essendi UK Hotels 2 Limited v London Property Company Limited (Preliminary issue Part 36 CPR)

The date of a Part 36 offer is not one of its terms. Rule 36.16(2) imposes a default prohibition on telling the trial judge the fact or terms of an offer before the case is decided. Where part of the case has been decided and rule 36.16(4) applies, the judge may be told whether offers other than those confined to decided issues exist. That permission extends to information about the offer’s existence, including its date and ordinarily its maker, but not its substantive terms. The date may therefore be disclosed to allow consideration of costs incurred before the offer.

The claimant was substantially successful in a trial of preliminary issues conducted from 4 to 12 March 2026. Judgment was handed down on 5 June 2026, cited as [2026] EWHC 1354 (TCC). The claimant wished to seek its costs up to 21 days after the defendant’s earliest Part 36 offer and to disclose the offer’s date to the judge.

The parties agreed that the judge was a trial judge for Part 36 purposes. The issue was whether the date fell within the terms of the offer or the fact that it had been made, and how rule 36.16 operated where part of the case had already been decided.

1. Disposition. The court held that the date of the defendant’s first Part 36 offer could be disclosed to the trial judge. The ruling determined the disclosure issue only; it did not decide the eventual costs order.
2. The issue was one of construction. Part 36 is a self-contained and highly prescriptive procedural code. It must be construed according to its terms, without importing general-law rules unless that was clearly intended, consistently with Gibbon v Manchester City Council, [2010] 1 WLR 2081, and Coward v Phaestos, [2014] EWCA Civ 1256.
3. Rule 36.16(1) provides the starting presumption that a Part 36 offer is admissible when costs are being considered. Rule 36.16(2) immediately restricts that position. Until the case is decided, the fact that an offer has been made and its terms must not be communicated to the trial judge, subject to the stated exceptions.
4. The date of an offer is not one of its terms. Rules 36.5, 36.7, 36.9, 36.14 and 36.17 distinguish substantive terms from the time when an offer is made. The date is instead part of the relevant information concerning the fact that an offer was made.
5. Where rule 36.16(3)(d)(i) applies, rule 36.16(4) permits the judge to be told whether offers other than those relating only to decided issues exist. On a purposive construction, that permission includes information about the existence of such offers, including their date and ordinarily their maker. It does not permit disclosure of their terms.
6. The construction avoids the mischief addressed by the rule. Disclosure of the date or maker does not reveal the substantive terms. Judges can generally be trusted not to speculate improperly, and the approach is consistent with the costs philosophy discussed in Langer v McKeown, [2021] EWCA Civ 1792; [2022] 1 WLR 1255, and the guidance associated with Garratt v Saxby (Practice Note), [2004] EWCA Civ 341; [2004] 1 WLR 2152.

High Court (Technology and Construction Court): The present ruling followed a preliminary-issues trial from 4 to 12 March 2026 and judgment on 5 June 2026, cited as [2026] EWHC 1354 (TCC) . The court then determined the Part 36 disclosure issue as a preliminary issue.