Langer v McKeown [2021] EWCA Civ 1792 concerned circumstances where no Part 36 offer to settle had been made, and one party made a without prejudice offer covering the entirety of the litigations (a Calderbank offer). The judge was aware of the Calderbank offer but not of the date it was made or its terms. The question arose whether the judge was bound to treat such an offer as equivalent to a Part 36 offer where a ruling on costs would normally be adjourned until all stages of the litigation concluded?
Dismissing the appeal, the Court of Appeal held the judge was not bound to do so. The costs offer in the case, which concerned a dispute between shareholders of lap-dancing clubs, was to be £450,000.
Delivering the lead judgment, Lord Justice Green said he did not accept the appellant’s argument for three reasons: ‘First, because it is inconsistent with the language of CPR 42.2 which by its express terms confers a broad discretion upon a court and which makes the existence, scope and effect of admissible offers to settle but one of the factors which a court is required to take into account.’ Second, it was inconsistent with the policy considerations underpinning CPR 42.2 and, third, there was no case law to support the argument.
He said he agreed with the judge’s analysis that ‘the Calderbank offer was not admissible at the present stage of the litigation because it had not been placed before the court…He rejected the proposition that the appellant could have it "both ways" by withholding "admission" but nonetheless requiring the court to take account of it.’
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