The Owners of the Samco Europe –v- The Owners of the MSC Prestige [2011] EWHC 1656 (Admlty)

Posted on Thursday, June 30th, 2011

The Samco Europe and the Prestige were ships which collided on 8th December 2007. On 9th September 2009, the owners of the Samco Europe put forward a Part 36 and/or Part 61 offer to settle liability 60/40 in their favour. That offer was withdrawn and replaced with one for 2/3 liability in Samco’s favour on 4th February 2011. At trial liability was determined 60/40 in favour of the owners of the Samco. The owners of the Prestige argued that it would be unjust to award the other party all of their costs on the basis of the decision in The Toni [1974] to the effect that a litigant should only get the benefit of an offer to settle which he had maintained up to trial. The owners of the Samco relied on the later authority of Bristol & West Building Society –v- Evans Bullock [1996] Unreported (CA) which found that an offer retained its costs potency even after being withdrawn. That approach was followed in Trustees of Stokes Pension Fun –v- Western Power Distribution [2005] and other authorities. The judge found that The Toni was not binding and the line of authorities beginning with Bristol & West was to be preferred. The only question was whether it would be unjust to award the owners of the Samco their costs from 1st October 2009. The owners of the prestige had made their own Part 36/61 offer in June 2009 and were therefore in a position to assess the reasonableness of the offer made to them. There was no reason why they could not have accepted the offer during the 16 months it was available. The only reason costs were incurred beyond 1st October 2009 was the non-acceptance of the offer. Therefore it was just to award the owners of the Samco their costs from that date.

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