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Epsom College v Pierse Contracting Southern Ltd (In Liquidation) (Formerly Biseley Construction Ltd) [2011] EWCA Civ 1449, 13/12/11


A judge's award of costs based on a Claimant's Part 36 offer was illegitimate as the offer had been withdrawn the Court could rely on the consequences of a previous unwithdrawn Part 36 offer.

It was agreed between the parties that the judge's award of costs based on the second Part 36 offer was technically illegitimate as that offer had been withdrawn. The question was whether the award could or properly should be translated into Part 36 costs consequences under the surviving first offer or under Part 44. It was held that the first Part 36 offer was valid and reliance on that offer could be substituted for the second offer. The essence of the judge's disposal of the question of costs would be upheld. As the second Part 36 offer's withdrawal meant that it could not be made the basis of Part 36 costs consequences, reliance on the first, unwithdrawn, Part 36 offer would be substituted.