Tom Bell debates the pros & cons of disapplying CPR 36.14
Unlike the general power provided by CPR 44.3, the costs consequences of Pt 36 do not lie in the discretion of the court. The court must apply them unless it considers it “unjust” to do so.
CPR 36.14(4) requires the court to take into account all the circumstances of the case when considering whether injustice would arise. However, the nature of the specific circumstances which the court must take into account suggests that its focus should be on whether the offeree can reasonably be expected to have accepted the offer in question, not the more general question of whether it was appropriate for him to reject an offer of settlement at all.
The recent costs decision of Briggs J in Smith v Trafford Housing Trust [2012] EWHC 3320 (Ch) is a controversial example of a court taking a wider view of the question of whether it would be unjust to give effect to
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