When Part 36 Offers Demand Total Capitulation | Matière v ABM
In Matière SAS v ABM Precast Solutions Ltd the court determined consequential costs orders following a liability judgment. The central issue was whether the claimant was entitled to the full beneficial consequences of its April 2022 Part 36 offer under CPR 36.17(4). The court found the offer was a genuine attempt to settle the claim, representing a 12% concession, but was not a genuine attempt to settle the counterclaim, which it valued at ‘nil’ against a multi-million pound valuation. Consequently, it was held unjust to apply the indemnity costs consequence to the counterclaim. Matière was awarded its costs of the claim on the standard basis to the expiry of the relevant period and on an indemnity basis thereafter, but its costs of the counterclaim were awarded on the standard basis throughout. The court rejected the defendant’s application under CPR 44.2 for a 70% reduction in costs, finding the sub-issues it succeeded on were merely stepping stones to its overall failed loss of chance claim. The court awarded the 10% uplift on damages (£37,329.51) per CPR 36.17(4)(d). Enhanced interest on the principal sum and on costs under CPR 36.17(4)(a) and (c) was awarded, but the court exercised its discretion to set the rate at 7% above base, not the maximum 10%, and only for the claim costs from the relevant period. A payment on account of costs was ordered at 90% of the approved budget, amounting to £935,000.
