As a costs lawyer, one of the topics I like to bore my solicitor clients with is Part 36 and its wider implications. Used correctly, a well-thought-through approach to Part 36 offers can see early resolution of disputes and considerable costs savings, and in the absence of a resolution a well-pitched Part 36 offer can provide for a range of enhancements for a claimant at trial.
The High Court’s recent decision in King and others v Kings Solutions Group Limited and others considered CPR 38.7 and re-examined the case law on abuse of process as set out in Henderson v Henderson. The case was heard by Tom Leech QC, sitting as a Judge of the Chancery Division of the High Court.
On 12 November 2020, the Court of Appeal handed down its judgment in Mousavi-Khalkali v Abrishamchi and another.
At first blush, the court’s judgment is surprising: Phillips LJ (with whom Newey and Floyd LJJ agreed) unanimously held that “it was difficult to see how” the claimant, a British-Iranian national, was subject to a “real risk” of not obtaining substantial justice in Iran in circumstances where there had been repeated and express warnings from the Foreign and Commonwealth Office (FCO) against British-Iranians travelling to Iran for fear of arrest. The court accordingly refused the claimant’s appeal against the order setting aside the grant of permission to serve his claim form on the respondents out of the jurisdiction in Iran.
Why did the first instance judge, and then the Court of Appeal, depart so drastically from the initial order granting the claimant permission to serve out of the jurisdiction? The answer lies in the various material non-disclosures found to have been made by the claimant in his application.