The question arises in practice as to whether a Part 36 offer which does not concern a monetary value may constitute a “genuine” offer in order to satisfy CPR 36.17(5)(e). Whether or not the offer is a genuine attempt to settle the proceedings is one of the factors which the court is obliged to take into account when determining whether or not it is just to order the cost consequences that flow from an offer that is unaccepted and then not bettered at trial by the offeree.

CPR 36.2(2) provides that a party may make an offer in any way that it chooses (so long as it is in accordance with the criteria in CPR 36.5, which do not specify that it must be for a sum of money). However, this provision does not deal expressly with the question of whether a non-monetary offer will be considered by the court to be a genuine offer. 

Previous case law had provided some useful guidance on what would constitute a genuine offer, including:

·        AB v CD and others [2011] EWHC 602 (Ch). Here the court commented that: “the offer must contain some genuine element of concession on the part of the claimant, to which a significant value can be attached in the context of the litigation…I see no reason in principle why the concession offered may not also relate to an advantage or form of relief which the claimant would only be able to obtain at or after trial, provided that obtaining it would be of significant value to the claimant, and the agreement to forego the opportunity to obtain it is not merely an empty gesture.”

·        In Jockey Club Racecourse Ltd v Willmott Dixon Construction Ltd [2016] EWHC 167 (TCC), an offer to accept 95% liability was a genuine offer to settle. The court held that it was "hardly generous" but could not be described as “all take and no give”.

·        Similarly, in JMX (a child by his mother and litigation friend, FMX) v Norfolk and Norwich Hospitals NHS Foundation Trust [2018] EWHC 185 (QB), the court held that a Part 36 offer to accept 90% of the damages to be agreed or assessed was a genuine offer. The case also made clear that an offeror need not explain to the other party the rationale behind making such an offer.

However, there appeared not to be case law directly on point until the recent decision of the High Court in MR v Commissioner of Police for the Metropolis [2019] EWHC 1970 (QB). Here, the claimant made a Part 36 offer to settle the dispute for nil pounds with an admission of liability plus reasonable costs to be assessed if not agreed. The court held that an offer that gave up any and all claim to a financial remedy was a significant concession and therefore a genuine Part 36 offer.

The decision is significant in providing express recognition that a Part 36 offer can be genuine without a damages element. Provided there is a genuine element of concession in their offer, a party should not feel bound to tie it to a sum of money.