Latest insights from Professor Dominic Regan!
£44 billion is supposedly the amount at stake in the secret car finance commission litigation. The Court of Appeal last October found outright for the various claimants in JOHNSON V FIRST RAND (2024) EWCA Civ 1282. Last month the Supreme Court heard the lenders appeal over 3 days. I dropped in to hear the closing submissions of Rob Weir KC who had won in the end.
I predict that some claimants will get some damages. I do not for a moment think that it will be the financial car crash of car crashes feared by the banking fraternity and it will not be a cash cow for claims management companies either.
On May 7th and 8th, the Court of Appeal is going to consider whether a credit hire provider that backed litigation whilst of course not itself a party to the action ought to pay the costs of the opposition. This is a hot topic in the continuing war between insurers and credit hire businesses. The very senior Regional Costs Judge Richard Lumb has delivered 2 judgments already this year expressing his distaste for the antics in the credit hire market.
Part 36 never fails to throw up intriguing points and long may that continue. Calver J in HENDERSON & JONES LIMITED V SALICA INVESTMENTS LIMITED (2025) EWHC 838 (Comm) upheld as valid a Part 36 proposal which failed to specify the duration of the relevant period. CPR 36.5 (1) stipulates that
1) A Part 36 offer must—
(a) be in writing;
(b) make clear that it is made pursuant to Part 36;
(c) specify a period of not less than 21 days within which the defendant will be liable for the claimant’s costs in accordance with rule 36.13 or 36.23 if the offer is accepted;
Here, the offer in dispute was the latest in a line of offers, every one of which had specified 21 days. Calver J alluded to C V D (2011) EWCA Civ 646 which the excellent 2025 White Book cites as authority for the proposition that “Where a party makes an offer that is intended to be a Part 36 offer but a point arises as to its construction, the court should prefer the construction, if possible, that would give effect to the stated intention and allow the offer to be effective.” Had the Court form of offer been used this problem ought not to have arisen, because it contains a reminder to specify the relevant period which could be 21 days or indeed 210 days. Getting Part 36 offers right is so important because of “the raft of enhancements” as the reward regime was so eloquently described by Lady Justice Asplin in CALONNE CONSTRUCTION LIMITED V DAWNUS SOUTHERN LIMITED (2019) EWCA Civ 754.
A mention of the emphatically not for profit annual Cambridge annual Medico – Legal Conference to be held on September 19th and organised by Stuart McKechnie KC and others. The finest doctors and lawyers share their wisdom.
Finally, congratulations to Costs Judge Jason Rowley upon his elevation to the post of Senior Costs Judge as predicted here at FT months ago.
Professor Dominic Regan
30.04.2025