An 'unhappy process': Brit Inns Ltd (In Liquidation) v BDW Trading Ltd

Abstract

In Brit Inns Ltd (In Liquidation) v BDW Trading Ltd [2012] EWHC 2489 (TCC) Coulson J addressed the difficult question of what costs order should be made by a court when the parties have put forward a series of competing Part 36 and Part 44 offers and the amount spent on the litigation exceeds that recovered as damages. In the process of doing so, the learned judge observed that “This litigation has gone wrong for everybody”.

Those who had hoped that the Court of Appeal’s decision in F&C Alternative Investments (Holdings) Ltd and Others v Barthelemy and Another [2012] EWCA Civ 843 marked an end to this “accumulation” may be disappointed at Coulson J’s intervention in Brit Inns Ltd. Others, however, may welcome it as a helpful review of the relevant law and guide to how future decisions on the relationship between CPR Parts 36 and 44 should be reached. This article looks at the decision and its possible consequences.