The appellant was arrested on suspicion of harassment but was later released without charge, after police had taken fingerprints and DNA samples. The appellant issued a claim for false imprisonment and assault.
In May 2011, the respondent commissioner made a Part 36 offer to settle in the sum of £4,000 and provided a letter of apology. The appellant rejected that offer on the basis that he would have to declare his arrest on entry to certain countries.
In September 2012, the appellant made a Part 36 offer to settle for £5,000 on condition that the commissioner admit liability for the matters alleged in the claim. In May 2013, the appellant made a further Part 36 offer to settle for £5,000 on condition that the commissioner admit unlawful arrest and ensure that all records of his arrest and of the harassment warning be removed from police records. The offer was rejected.
On 20 July 2017, the appellant made a further Part 36 offer to settle the matter for nil damages with an admission of liability, plus reasonable costs. That offer was rejected and the respondent invited the appellant to attend a without prejudice discussion. The appellant did not respond to that invitation.
At trial, the judge found that the arresting officer’s suspicion that the appellant had committed an offence was reasonable. However, she also found that he had voluntarily attended the police station and it had not been reasonable to arrest him. The claim for assault was made out in respect of the fingerprinting and the taking of a mouth swab for the DNA sample. The appellant was awarded £2,750, but the judge found that it would be unjust to apply the provisions of CPR r.36.17 and made no order as to costs.
The appellant appealed on costs alone and submitted that, on the basis that the achievement of a vindication was capable of forming part of the remedy, he had achieved a judgment “at least as advantageous” as the proposals in his Part 36 offer of July 2017 for the purposes of r.36.17(1)(b) and was therefore entitled to his costs. The commissioner submitted that the offer of 20 July 2017 was not a genuine Part 36 offer because it included proposals on costs despite no sums in damages.
Mrs Justice McGowan held that the fact that the appellant had given up all claim to a financial remedy was a significant concession indicative of a genuine Part 36 offer. That offer did engage the provisions of r.36.17 and it would be unjust not to follow its provisions in the usual way.
Written by Zenith’s Elliot Kay.
Zenith PI: PERSONAL INJURY LITIGATION IN PRACTICE 