Civil Way: 11 December 2020

ALL OR NOTHING

A judgment which beats a Pt 36 offer bears four juicy fruits, unless that would be unjust. In Telefonica UK Ltd v The Office of Communications [2020] EWCA Civ 1374, [2020] All ER (D) 55 (Nov), the mobile network operating claimant seeking restitution of annual licence fees paid to Ofcom had made a pre-action Pt 36 offer for a cool £52.82m principal as against a judgment for over £54m, in which interest also figured. The judge awarded two of the fruits, to wit indemnity costs from 21 days after the offer and an additional amount at the capped £75,000. However, he decided against the other two enhancements of interest on the principal and the costs (above the agreed commercial rate of 2% over base) which cannot exceed 10% above base. In relation to enhanced interest on the principal award and the judge’s reasoning that such an award would have