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McPhilemy v Times Newspapers Ltd (No.4)
Comment
The Court held that no "stigma" necessarily had to attach to an order for indemnity costs under the Part 36 regime. The rationale for indemnity costs under CPR 36.21 was commercial and it was not necessary to find any conduct worthy of opprobrium as a pre-condition of making an order for indemnity costs where the criteria under CPR 36.21 were otherwise satisfied. The Claimant in this case had cleared the Part 36 offer by such a margin that there was no room for any argument that an element of vindication was being supplied by the Statement in Open Court that would usually follow the acceptance of a Part 36 Offer. Whether a claimant has "done better" than his Part 36 offer will raise interesting questions in cases where the damages awarded are much closer to the sum offered. However, that interesting argument will have to wait for another day.