Trial Judge May Be Told The Date Of A Part 36 Offer | Date Falls Within The Fact Of The Offer, Not Its Terms

In Essendi UK Hotels 2 Limited v London Property Company Limited (Preliminary issue Part 36 CPR) [2026] EWHC 2501 (TCC), the High Court held that a judge who has tried preliminary issues may be told the date of a Part 36 offer before the case is decided. Without that date, a successful party could not even invite the court to award its costs up to the end of the first offer’s acceptance period.

Background

The claim was complex and expensive litigation in the Technology and Construction Court, in which preliminary issues were tried first [6], [8]. HHJ Stephen Davies tried those issues in March 2026 and handed down judgment on 5 June 2026, in which the Claimant was substantially the successful party [1]. As the judge allocated to try the remaining issues, he was the trial judge within CPR 36.3 [8].

The Claimant wished to inform him of the date of the Defendant’s earliest Part 36 offer, so that it could seek its costs of the proceedings down to the date 21 days after that offer [1]. The Defendant had already agreed that the court could be told that it made the offer [14]. The parties agreed that the disclosure point should be decided first, so that the Claimant would not incur the expense of a substantive costs hearing if it lost [9].

Costs Issues Before the Court

The issue was one of pure construction of CPR 36.16, read as part of a self-contained procedural code [10]. Where any part of, or issue in, a case has been decided, CPR 36.16(4)(a) allows the trial judge to be told whether or not there are Part 36 offers, while CPR 36.16(4)(b) forbids disclosure of their terms [4], [7]. Neither limb states whether the judge may be told the date of an offer [4]. If the date could not be given, the Claimant could not even invite a costs order for the period, because its end date could not be made known [2].

The Parties’ Positions

Mr Naylor, for the Claimant, submitted that CPR 36.16(1) creates a starting presumption that a Part 36 offer is admissible on costs [28]. Both counsel accepted that CPR 36.16(2) must prohibit communication of any information about an offer’s existence [30]. Mr Naylor argued that all such information must fall within either the fact of the offer or its terms and, since the date is not a term, it falls within the former [30], [33].

Mr Trompeter KC, for the Defendant, submitted that the date was itself part of the terms of the offer [34]. Alternatively, he argued that CPR 36.16(4) applies according to its express terms, so that what is not expressly permitted is prohibited [41]. He also contended that the date, especially with the offeror’s identity, might allow a shrewd judge to infer that party’s view of the merits [45].

The Court’s Decision

The judge accepted Mr Naylor’s submission that CPR 36.16(1) means the starting point is a presumption that a Part 36 offer will, in principle, be admissible when the court deals with costs [28]. He also accepted Mr Trompeter KC’s submission that CPR 36.16(2) is an immediate derogation from it. Until all issues have been determined, nothing about any Part 36 offer is to be communicated to the trial judge [29].

The judge agreed with Mr Naylor that all information about an offer must fall within either the fact of the offer or its terms. Otherwise a party could tell the judge that on a given date one party sent another a communication of a kind provided for by Part 36, which would undermine the whole purpose of CPR 36.16(2) [31]. The prohibition on disclosing the fact of an offer therefore includes its date and the identity of its maker [31], [32].

Part 36 contains no definition of the terms of an offer [35]. CPR 36.5(1) lists matters, such as the period for acceptance, that are clearly terms, while CPR 36.7 deals separately with when an offer is made [35]. Terms can be changed under CPR 36.9, but the date of an offer cannot [36]. CPR 36.14 refers to a stay and to enforcement upon the terms of the offer [37], and CPR 36.17(5) treats the terms and the stage at which an offer was made as separate matters [38].

These provisions were consistent with Part 36 offers operating along broadly the same lines as a contract, where there is a normal and well-understood difference between the date of an offer and its substantive terms [39]. The judge considered that this would doubtless explain why the rule committee had not defined the terms of an offer [39].

The date of an offer therefore cannot be one of its terms. It must instead be part of the fact that the offer has been made because, in the words of HHJ Stephen Davies, “since 36.16(2) is intended to operate as a blanket prohibition, the fact that a Part 36 offer has been made includes all of the relevant facts about that Part 36 offer other than its terms” [40].

That conclusion disposed of Mr Trompeter KC’s alternative submission, which assumed an intermediate category of facts falling within neither limb of CPR 36.16(4) [41], [42]. The judge considered it made no sense to suppose that the rule committee had recognised such a category and then left open whether it could be disclosed [43].

If such a category did exist, the judge would favour the construction permitting disclosure of all information about the offers other than their terms [44]. The mischief was that the old rule barred disclosure even of an offer’s existence, and that judges might be influenced, even subconsciously, by an offer’s terms at the stage two trial [44]. As he put it, “Disclosing the date of Part 36 offers or the identity of their makers does not reveal the terms of any such offers.” [44]

The judge was not convinced by the argument about inferences on the merits. Defendants make early offers for many reasons, such as testing a claimant’s willingness to go to trial or avoiding irrecoverable costs, and by the end of a stage one trial the judge is likely to have formed a far more illuminating view of the parties [46]. He also presumed that judges do not decide the substantive issues on a hunch about what an offer may say [47].

Finally, the judge found no compelling reason to treat non-disclosure as the default unless disclosure was expressly permitted [48]. If the amendment was meant to let a stage one judge determine the costs of that trial before stage two, withholding who made an offer would make no sense. The argument applied with not quite the same force to the date, but the pay-as-you-go philosophy identified by Green LJ in Langer supported disclosure because, without it, judges “would not even be able to embark on that enquiry” [48]. He concluded that he could be told the date of the Defendant’s first Part 36 offer [49].

Practical Implications

This is a first instance decision, but it gives a reasoned answer to a question CPR 36.16(4) does not expressly address. Where part of a case has been decided and a global Part 36 offer remains in play, a successful party can tell the trial judge the date of the opponent’s first offer without breaching CPR 36.16 [40], [49]. The reasoning also extends to the identity of the offeror, although that point was conceded here and left undecided [14], [48].

Receiving parties seeking costs at the end of a stage one trial should identify the date of the first Part 36 offer and frame the application around the costs incurred before the relevant date [1], [6]. Disclosure only allows the court to consider whether to exercise its discretion; it does not secure the order [48].

Paying parties should not expect CPR 36.16(4) alone to keep the date from the judge, and should prepare their resistance on the exercise of the discretion instead. Both sides must keep the terms of any offer from the judge unless an exception in CPR 36.16(3)(a) to (c) applies [7]. Where the point is contested, it can be determined first, as here, before a full costs hearing is prepared [9].

Calderbank Offers Not To Be Equated To Part 36 In Split Trial Cases

CPR 36.17(5) | Costs Following Trial On Liability And The Effect Of An Extant Part 36 Offer

Costs of determining a preliminary issue

Costs Exceptionally Reserved On Preliminary Issue Due To Potential Set-Off Against Arbitration Awards

Admissibility (or not) of without prejudice offers on costs