The judgment of Mr Justice Falk in Devoy-Williams v Hugh Cartwright & Amin  EWHC 2815 (Ch) examined the relevance (or lack thereof) of Part 36 offers to settle when considering applications for relief from sanctions.
The Claimants brought a claim for professional negligence against the Defendant firm of solicitors. On 14 September 2016, the Court made an unless order requiring disclosure of certain documents by 21 October 2016, with the claim to be struck out in default. The Claimants did not comply with the order. On 10 October 2016 (after the unless order but before the strike out date), the Defendant made a Part 36 offer to settle the Claim. The Claimants sought to accept the Part 36 offer on 1 November 2016 and the Defendant responded that the offer was no longer effective as the claim had been struck out. Subsequently, on 1 December 2016, the Claimants applied for relief from sanctions so that the offer could be accepted.
The matter was first heard in the Central London County Court by Her Honour Judge Baucher. HHJ Baucher applied the 3 stage “Denton Test” and refused the application, noting that she did not think it appropriate to take account of the Part 36 offer when reaching her decision, expressing the view that it was not for the Court to grant relief to enable an offer to be accepted, “thwarting” the purpose of an unless order.
The Claimants appealed on a number of grounds, all of which were dismissed by Falk J. Falk J noted that, in the absence of a settlement, disclosure would have remained material and HHJ Baucher was correct to conclude that the Part 36 offer was not a “Trump Card”.