The issue the Court of Appeal had to decide in the matter of Calonne Construction Ltd v Dawnus Southern Ltd [2019] EWCA Civ 754 was a simple, but important, one. The Defendant had made a Part 36 offer which made provision for a proposed counterclaim (yet to be pleaded) and for interest to accrue at a rate of 8% after expiry of the offer.

The matter had originally been heard in the Technology and Construction Court before His Honour Judge McKenna. HHJ McKenna rejected the Claimant’s arguments that the inclusion of the unpleaded claim and the claim for interest invalidated the Part 36 offer. The Claimant appealed.

Lady Justice Aspin gave the Court of Appeal’s judgment, which considers CPR 36 in considerable detail. She noted that there was no rule or apparent policy reason that the offer offended, and thus she upheld HHJ McKenna’s finding that it was a valid offer.