Christopher Bell v Commissioner of Police of the Metropolis
[2024] EWHC 650 (KB)
Old Park Capital Maestro Fund Limited v Old Park Capital Limited (in liquidation)
28 November 2023
[2023] EWHC 3057 (Ch)
High Court
A company (Fund) sued another (BP) for cheating them. The Fund offered to settle for a specific amount. The court ruled against BP, and although BP won some smaller points, the court said BP still had to pay because the settlement offer was fair and BP should have taken it. The court also decided how much extra BP had to pay in interest and legal fees.
Key Facts
- •Old Park Capital Maestro Fund Ltd (in liquidation) (Claimant) sued Old Park Capital Ltd (in liquidation), Hugo Van Kuffeler, and Bruno Pannettier (Defendants) for fraudulent misrepresentation.
- •The Claimant made a Part 36 offer to settle for USD 4,175,182.99 on April 4, 2023.
- •The Court found for the Claimant against the Third Defendant (Pannettier) in fraudulent misrepresentation for the same amount on July 27, 2023.
- •The issue was whether the judgment was 'at least as advantageous' to the Claimant as the Part 36 offer, considering currency exchange rate fluctuations.
- •The Defendant (Pannettier) argued the offer was not beaten due to exchange rate changes between April and July 2023.
- •The Court considered whether the Part 36 offer was a genuine attempt to settle and if it would be unjust to apply CPR 36.17(4) consequences.
Legal Principles
In Part 36 offers, the comparison in money terms is made at the date of judgment. A judgment in a foreign currency is converted to sterling at the exchange rate applicable at judgment.
White Book, 36.17.2; Barnett v Creggy [2015] EWHC 1316 (Ch); Novus Aviation Ltd v Alubaf Arab International Bank [2016] EWHC 1937 (Comm)
When deciding if a judgment is 'at least as advantageous' as a Part 36 offer, the court can consider events after the trial judgment.
Novus Aviation (paragraph 22)
To depart from the norm in CPR 36.17(4), there must be something about the case that takes it outside the norm. The question is not whether the defendant had reasonable grounds for rejecting the offer, but whether the usual order would be unjust.
Downing v Peterborough & Stamford Hospitals NHS Foundation Trust [2014] EWHC 4216 (QB); Matthews v Metal Improvements [2007] EWCA Civ 215
The purpose of pre-judgment interest on damages is to compensate the claimant for being kept out of money that should have been paid, considering the position of persons with the claimant's general attributes.
Carrasco v Johnson [2018] EWCA Civ 87; OMV Petrom SA v Glencore [2017] EWCA Civ 195
For US dollar judgments, a rate of post-judgment interest appropriate to compensate for delayed receipt of a US dollar sum should be applied, rather than the standard UK rate.
Novoship (UK) Ltd v Mikhaylyuk [2015] QB 499
Outcomes
The Claimant's judgment was deemed 'at least as advantageous' as the Part 36 offer.
Both the offer and the judgment were in US dollars, making currency conversion unnecessary. The judgment awarded at least the amount specified in the offer.
The Court ordered consequences under CPR 36.17(4) to apply.
The Part 36 offer was a genuine attempt to settle. The Defendant's arguments for why the usual order would be unjust were not sufficient.
The Defendant must pay interest on the USD 4,175,182.99 from April 25, 2023, at base rate +6%; the Claimant's costs on the indemnity basis from April 25, 2023, with interest at base rate +6%; and an additional £75,000.
This reflects the CPR 36.17(4) consequences, considering the compensatory nature of interest and the disruption caused by the Defendant's rejection of the offer.
The Claimant will receive 85% of their costs incurred before April 25, 2023, with interest at base rate +2%.
This reflects a 15% reduction due to the Defendant's successes on certain aspects of the case.
A payment on account was ordered, calculated based on an assumption that half the Claimant's costs related to the claim against the Defendant.
This allows for a partial payment pending a detailed costs assessment.