Cunningham v AST Express CA (Civ Div) (11 June 2009)

This was a matter where the Claimant had initially claimed damages of £180,000. On 01/09/06, prior to proceedings being issued, the Defendant made an offer of £4,700. The Claimant rejected this offer. At trial, the Claimant was awarded £4,143. The Defendant then made an application for costs from 21 days after the order to settle had been made. The Judge held that as there had been no payment into Court, the offer could not be treated as a Part 36 offer and ordered that the Defendant was to pay the Claimant’s costs until 21 days after the offer was made and then half of the Claimant’s costs thereafter.

The Defendant appealed this decision. It was held that the Judge had erred in his decision and not given proper consideration as to who was the winning party at each stage. The Claimant had exaggerated his claim greatly but the Defendant’s conduct had been impeccable. There had been no reason to deprive the Defendant of the benefit of the Part 36 offer. Therefore, the normal order was to apply, where the Defendant was to pay the Claimant’s costs until 21 days after the date of the offer and the Claimant was to pay the Defendant’s costs thereafter.