FAIL TO PROVE EXAGGERATION AND BEAT A PART 36 OFFER? BE PREPARED TO FACE THE CONSEQUENCES (Elgamal v Westminster City Council)
If it was ever needed, the profession got another reminder that the usual consequences generally apply when a Claimant beats his/her Part 36 offer. In Elgamal v Westminster City Council  EWHC 2510 (QB), the Defendant appealed the decision to allow the usual consequences of failing to beat a Part 36 offer, after being unsuccessful in its submission that the Claimant had been fundamentally dishonest.
The Claimant brought an action for damages for personal injury after being injured in a gym. Liability was agreed on a 65/35% basis in the Claimant’s favour. However, there was a dispute in respect of quantum. At trial, the Defendant argued that the Claimant had exaggerated his claim, including the alleged manifestation of a limp, which amounted to fundamental dishonesty. Whilst the Court found that the Claimant had exaggerated his injuries, this had no fundamental impact on the case and it was not accepted that he had been fundamentally dishonest. The Defendant appealed this decision but was unsuccessful.
The Defendant also appealed the decision to award the Claimant the usual consequences associated with the Claimant having beaten his own Part 36 offer to settle – the consequences had been allowed (in the normal way) as the Claimant had succeeded in obtaining a substantial sum and the Defendant had not succeeded with its submissions on fundamental dishonesty. The Defendant argued that the Judge had failed to properly consider CPR 36.17(3), and given the Claimant’s exaggeration, was wrong to determine that the consequences were not “unjust”.
The appeal was dismissed – it was affirmed that the decision to disallow the usual Part 36 consequences is/was discretionary and it was not wrong to apply the usual costs consequences after a failure to beat an unaccepted Part 36 Claimant’s offer; this was well within the ambit of the Judge’s discretion. It was re-emphasised that the Claimant had (clearly) made a reasonable Part 36 offer, established his case at trial, and defeated the fundamental dishonesty argument.
The judgment in Elgamal is another reminder that it is inherently difficult to persuade the Court that the usual Part 36 consequences should not apply, especially so when a Claimant beats an offer that he/she has made. The same principles apply to costs proceedings, so it is crucial to understand all the risks and potential consequences when proceeding to assessment.
For further information, please do get in touch with the team regarding any queries you may have in relation to any of your legal costs requirements on 01733 350 880, or by email email@example.com. For more information please do visit our website www.aandmbacon.co.uk.
Published 7 October 2021
Author – James Parkinson
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