In Gulati v MGN, Mr Justice Mann considered the costs consequences of a withdrawn Part 36 offer for an amount which the claimant had beaten at trial. The offer was made well before trial and withdrawn at the end of the 21-day period of acceptance.
The claimant proceeded at trial to obtain damages for more than the amount offered and consequently argued that notwithstanding its withdrawal, the costs consequences of the Part 36 offer were that costs should be assessed on the indemnity basis. Mr Justice Mann rejected that submission. He held, at paragraph 22 of his judgment, that: “It therefore seems to me that, as a beaten offer, Ms Frost’s one-time Part 36 offer has no great significance. It could play a part in a general assessment of the reasonableness or unreasonableness of the defendant’s conduct, but it cannot be elevated to a position comparable to a living Part 36 offer merely because it has been beaten”.