Litigation by its nature is hazardous and risky. However, where a party feels it has a robust case and makes an assessment that it would be willing to settle at 90% of the value of the claim, this should not have affected its ability to reap the rewards that Part 36 provides.
As Part 36 is prescriptive in its nature, I find it difficult to understand the position adopted by the Defendant. I say this without reading the judgment, however on the face of it, because of the prescriptive nature of Part 36, it appears that the arguments raised by the Defendant were thin.
Putting this to one side, the important message in this article is that there is nothing wrong in putting forward a Part 36 offer, which represents a party's view that its case is strong and robust. Certainly we have in the past made high Part 36 offers and this was done so on the basis of our assessment that the merits were strong.
If a party feels it has a robust and strong case, it should not be penalised for having not made bigger concessions in its Part 36, particularly where it has mostly (or fully) succeeded in getting judgment for what it has sought in the litigation.
Pre-trial 90% part 36 offer was “genuine attempt” to settle The High Court has rejected the argument that a part 36 offer to settle a clinical negligence claim for 90% of its value was not a genuine offer because it was made shortly before trial. Mr Justice Foskett said it would extremely difficult for the paying party to show that an offer did not reflect a realistic assessment of the risks of the case.