Blog - Monday 6 October 2014

Calderbank v Part 36 – An Unhappy Marriage?

The case of Martin John Coward v (1) Phaestos LTD (2) MINDIMAXNOX (3) IKOS CIF LTD (4) IKOS Asset Management LTD [2014] EWCA Civ 1256 is but one of a number of lawsuits around the world stemming from the fallout between estranged partners Dr Coward and Ms Ambrosiadou.

As with many disputes before the Court the concept of settlement against the backdrop of liability for costs is always a concern with the instrument of settlement being of crucial importance.

For the purposes of this blog, this case concerned (amongst other things) the making of a Calderbank offer. One submission made (which did not affect the outcome of the appeal) concerning the Calderbank offer was that this offer should be assessed by analogy to CPR.r.36.14 (1A):

‘…(1A) For the purposes of paragraph (1), in relation to any money claim or money element of a claim, ‘more advantageous’ means better in money terms by any amount, however small, and ‘at least as advantageous’ shall be construed accordingly...’

The Court held that Part 36 was a self-contained code unlike to Part 44 and each had their own separate purposes [see para.95 with reference to Gibbon v Manchester City Council [2010] 1 WLR 2081]. 

Part 44 contains no rules or requirement to apply, or by analogy apply, a similar test to Part 36. The decision very much confirms that the task of the judge was to exercise his or her discretion as to the just order for costs, having regard to all the circumstances including those specified in CPR.r.44.2(4). [see para.98] 

Insofar as a Calderbank offer is concerned it was stated that ‘…Part 44 contains no rules as to the way the Court was to have regard to offers…’ [para.98]. 

Having regard to this with reference to the separate Part 36 regime, such an offer (i.e. a Calderbank offer) is not to be assessed by analogy with the terms of CPR.r.36.14 (1A), which defined a ‘…more advantageous…’ judgment as one that was ‘…better in money terms by any amount’ than the relevant offer:

‘…I am satisfied that it would be contrary to the express terms of Part 44 to read into it a rigid approach drawn by analogy from CPR.14 (1A)…’ [para. 102]

Click here to read the full Judgement

By Nicholas J Browne, Solicitor