Post Hugh Grant’s privacy case settlement Consultant Colin Campbell explores the use of Part 36 offers in The Times
Colin explains how Part 36 offers are a critical part of the apparatus of civil litigation and how they work for both claimants and defendants.
Colin’s article was published in The Times, 25 April 2024, and a link to the article can be found here. The Times Hugh Grant is wrong over potential £10m costs
In Defence of Part 36 Offers
The criticism of Civil Procedure Rule 36 in the ‘Phone Hacking litigation is misplaced‘
The actor Hugh Grant has accepted an “enormous sum of money “ from News Group Newspapers, the publishers of the Sun, who offered by pay him that amount under Part 36 of the Civil Procedure Rules to settle his privacy case.
However, it was an unhappy outcome according to the star of ‘Four Weddings and a Funeral’. He would have “loved to see“ his claims of illegal phone hacking, phone tapping, burglary at his flat and the “blagging” of his medical records, tested in a High Court trial. That was rendered impossible he maintains, because the rules of court meant that if he recovered a penny less than NGN’s offer, he would face a bill of up to £10 million in legal costs.
Hugh Grant’s comments imply that this is a case of “Poor Hugh” and that the rules of court have been used against him as a strong-arm tactic to deny him his day in court. In effect, he is saying that a trial before a judge, who would make findings of fact and award damages if his allegations were found to be true, has effectively been bought off.
He is mistaken. Part 36 is a carefully drafted rule which has a place in the litigation armoury of claimant and defendant alike. Its purpose is to compel parties to focus on settling the case before trial, with penalties for those who do not engage in the process. In short, it gives both parties a stick.
For defendants, that stick is that if the claimant wins at trial but fails to beat a defendant’s Part 36 offer, the claimant must pay the defendant’s standard costs from the last date on which the offer should have been accepted. Usually, but not automatically, a winning claimant will recover costs up to that date.
However, claimants like Hugh Grant can also make Part 36 offers and that gives them a valuable weapon. If, at trial, the claimant wins more that the amount they have offered, the defendant has to pay an extra 10% of the damages awarded to the claimant. This is limited to a maximum £75,000, together with enhanced interest and indemnity, as opposed to standard, basis costs.
How does this square with Hugh Grant’s grumble that even if he won the case, he could still be £10m out of pocket? Not well is the answer. His own carefully pitched Part 36 offer would have given him protection against the risks of continuing with the case. So, while he will not now have a trial, at least he has the certainty and comfort that things cannot go badly on the day. As all lawyers know, that can happen, even in a seemingly watertight case.
Author: Colin Campbell
