Essendi UK Hotels 2 Ltd v London Property Company Ltd: trial judge may be told date of Part 36 offer

A trial judge who has decided preliminary issues may be told the date of a defendant’s first Part 36 offer, the Technology and Construction Court has held, resolving a point of construction on which the authorities had been said to conflict.

HHJ Stephen Davies, sitting as a High Court judge, gave judgement in Essendi UK Hotels 2 Ltd v London Property Company Ltd [2026] EWHC 2501 (TCC) on 2 October 2026.

The dispute

The claimant, substantially successful at a March 2026 trial of preliminary issues, wished to tell the judge the date of the defendant’s earliest Part 36 offer so that it could seek its costs down to 21 days after that date, on the pay as you go principle. The defendant argued that CPR 36.16 prevented this, so that the claimant could not even invite the court to make such an order.

Rule 36.16(4)(a) allows the trial judge to be told whether there are Part 36 offers, while rule 36.16(4)(b) forbids disclosure of their terms. Neither mentions the date.

The authorities

The judge found none of the cases determinative. Lifestyle Equities v Sportsdirect.com Retail [2018] EWHC 962 (Ch) turned on discretion, and in Original Beauty Technology v G4K Fashion [2021] EWHC 954 (Ch) a remark that the court could not be told when an offer was made appeared to be made in passing, without argument.

In Langer v McKeown [2021] EWCA Civ 1792, Green LJ observed that nothing in Part 36 precludes a costs order for costs incurred before an offer. The judge accepted that this was not based on any analysis of rule 36.16 and placed no real weight on it.

Construction of rule 36.16

Treating the matter as one of pure construction, and noting that Part 36 is a self-contained code, the judge began with rule 36.16(2), which prohibits communicating to the trial judge both the fact that an offer has been made and its terms until the case has been decided. As both counsel accepted, it operates as a blanket prohibition, so all information about an offer must fall within either “the fact” or “the terms”.

The date, he held, is not a term. Rule 36.5 lists what an offer must specify, rule 36.7 deals separately with when an offer is made, and rule 36.9 contemplates that terms can be changed whereas a date cannot. Rule 36.17(5) also treats the terms and the stage at which an offer was made separately. Part 36 offers operate broadly like contractual offers, in which date and substance are distinct. The date therefore forms part of the fact that an offer has been made, which the judge may be told.

The judge added that, even if there were an intermediate category of information within neither limb of rule 36.16(4), he would favour disclosure of everything other than the terms. The 2015 amendments targeted the earlier bar on revealing even the existence of offers and the risk of judges being influenced by terms, and the date reveals none.

He rejected the defendant’s argument that a shrewd judge could infer a party’s view of the merits from an early offer. Defendants make early offers for many reasons, and a judge who has presided over the first trial will hold far better informed views. Judges are presumed not to speculate and can usually be trusted to decide fairly even where terms are disclosed.

It would also make little sense, he said, to permit disclosure of who made an offer, as the defendant had already agreed, but not when. The pay as you go approach endorsed in Langer also supported disclosure of the date.