Kr v Bryn Alyn Community (Holdings) Ltd ((in Liquidation)) (Permission to Amend)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller |
| Judgment Date | 24 March 2003 |
| Neutral Citation | [2003] EWCA Civ 383 |
| Docket Number | Case No: B3/2001/2496 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 March 2003 |
[2003] EWCA Civ 383
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CHESTER DISTRICT REGISTRY)
Mr Justice Connell
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Auld
Lord Justice Waller and
Lord Justice Mantell
Case No: B3/2001/2496
Andrew Hogan (instructed by Uppal Taylor) for the Claimants
Nicholas Fewtrell (instructed by Hill Dickinson) for the Second Defendant
We handed down our judgment on 12 th February 2003. We dealt on that day with certain matters on which we gave rulings there and then, but reserved one point. This is the judgment of the court on that point.
After Connell J gave the judgment, which was the subject of the appeal, he had to consider the effect of certain offers made under Part 36 by certain of the claimants.
The relevant Provisions of Part 36.21 were:
Costs and other consequences where claimant does better than he proposed in his Part 36 offer
(1) This rule applies where at trial –
(a) a defendant is held liable for more; or
(b) the judgment against a defendant is more advantageous to the claimant, than the proposals contained in a claimant's Part 36 offer.
(2) The court may order interest on the whole or part of any sum of money (excluding interest) awarded to a claimant at a rate not exceeding 10% above base rate for some or all of the period starting with the latest date on which the defendant could have accepted the offer without needing the permission of the court.
(3) The court may also order that the claimant is entitled to –
(a) his costs on the indemnity basis from the latest date when the defendant could have accepted the offer without needing the permission of the court; and
(b) interest on those costs at a rate not exceeding 10% above base rate.
(4) Where this rule applies, the court will make the orders referred to in paragraphs (2) and (3) unless it considers it unjust to do so.
(Rule 36.12 sets out the latest date when the defendant could have accepted the offer)
(5) In considering whether it would be unjust to make the orders referred to in (2) and (3) above, the court will take into account all the circumstances of the case including –
(a) the terms of any Part 36 offer;
(b) the stage in the proceedings when any Part 36 offer or Part 36 payment was made;
(c) the information available to the parties at the time when the Part 36 offer or Part 36 payment was made; and
(d) the conduct of the parties with regard to the giving or refusing to give information for the purposes of enabling the offer or payment into court to be made or evaluated.
(6) Where the court awards interest under this rule and also awards interest on the same sum and for the same period under any other power, the total rate of interest may not exceed 10% above base rate."
It was common ground that certain claimants had made Part 36 offers and that judgments had been entered in their favour for more than those offers. There was a dispute in the case of the claimant Smyth whether that had happened. The second defendants argued that they were only parties to the action as insurers seeking to protect their own interest, and it was reasonable for them not to have accepted the Part 36 offers. The judge ruled against the second defendants on this last submission, but was in their favour as regards the claimant Smyth. He therefore purported to apply the machinery of Part 36.21 save in relation to Smyth and save in relation to interest on costs. By an order made on 29 th October 2001 he therefore made the following order:
"Order
Upon hearing Miss Adams of Counsel on behalf of the Claimants and Mr Fewtrell on behalf of the Second Defendants, and the First Defendants neither appearing nor being represented.
IT IS HEREBY ORDERED
THAT the Second Defendant do pay
1. In the claims of Kane, Rowlands, Elliott and Halliwell-Meachen, interest pursuant to Part 36.21(2) of the Civil Procedure Rules upon general damages at the rate of 8% above base rate from the date of Judgement, 26 th June 2001, to the date of payment.
2. In the case of Peter Anthony Smyth, the Claimant's claim for relief pursuant to Part 36, be dismissed;
3. The Second Defendant do pay those Claimants' costs as set out in paragraph 1 hereof, to be assessed if not agreed, on an indemnity basis pursuant to Part 36.21(3)(a) of the Civil Procedure Rules, but the Claimants' application for interest upon such costs pursuant to CPR Part 36.21(3)(b) be dismissed;
4. The Second Defendant do pay the Claimants' costs of and incidental to this application on the basis as set out in paragraph 3 above;
(5) The Second Defendant to have permission to appeal the learned judge's award of interest at the rate of 8% above base rate on general damages from the date of judgment to the date of payment as set out in paragraph 1 of this order."
Permission to appeal paragraph 1 of the Order having been granted, the second defendants put in a notice of appeal. The claimants then put in a respondents' notice seeking to challenge the refusal to award interest on the costs ordered on an indemnity basis and on the Smyth issue.
By an exchange of correspondence between 21 st December 2001 and 25 th January 2002 it was agreed between the parties that the terms of the order needed to be varied in order to give effect to the provisions of Part 36.21 as intended by the judge. The terms of the variation agreed were to substitute for the final words "from the date of judgment … to date of payment" of paragraph 1 of the above order, the words "from the last day upon which the defendant could have accepted the claimants' offer to the date of judgment."
The parties were unable however to agree what the word judgment in the order as varied meant. On behalf of the claimants it was submitted that the interest awarded under Part 36.21(2) ran up to the date of judgment in the Court of Appeal. On behalf of the second defendants it was contended that judgment meant the judgment of the judge (as varied by the Court of Appeal) i.e. that interest under Part 36.21(2) ran up until the date of the judge's judgment on the sums awarded by the Court of Appeal, and that interest ran at the judgment rate thereafter. It was agreed in correspondence that on the hearing of the appeal relating to Connell J's order under Part 36 only three issues arose – 1. The correct date of judgment; 2. the provision of costs in the case of Smyth; and 3. the costs of and incidental to the appeal. Since by our judgment in the main appeal we increased the general damages to be awarded to Smyth, issue 2 has on any view disappeared.
In this correspondence there is simply no mention of the respondents' notice and the challenge to the refusal of the judge to award interest on the costs. The second defendants submit that a definition of the issues shows a compromise of that issue; the claimants say that the respondents' notice raised a separate issue and the challenge to the judge's refusal to award interest on costs was not abandoned. One suspects that both sides overlooked the existence of the respondents' notice when reaching their agreement as to the issues on the appeal, and the court must simply do its best to decide objectively what the terms of the compromise covered.
The issues that remained therefore were the date of judgment point, the award of interest on the costs point, (including whether the compromise precludes the point being taken), and the costs of the appeal point.
During the course of argument in relation to the date of judgment point, a suggestion was made that the claimants might seek to achieve the result they sought by applying to the Court of Appeal to exercise its own jurisdiction by use of the machinery available under Part 36 or by exercising a discretion under CPR 40.8. At the conclusion of the hearing the parties were invited to put in further written submissions if they wished to do so. It appears from his written submissions that Mr Fewtrell was under the impression that this latitude was being granted to enable Mr Hogan to deal with the interest on costs point alone, but it matters not.
Further written submissions have been put in by both sides. In addition, and of critical significance to the judgement date point, judgment has been given by a Court of Appeal, differently...
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