The Court of Appeal decided that the "date of judgment" could only be the date of judgment of the first instance judge. They took the view that a fresh Part 36 offer was required to be made during the appeal proceedings in order for the machinery of Part 36 to be available to the Court of Appeal. They refused to use their general discretion to apply the pre-appeal Part 36 offer to the appeal proceedings. In respect of interest, the trial judge was bound by CPR Part 36.21(4) to make an order for interest on costs unless he considered it unjust to do so. The judge had not considered that paragraph of Part 36, and in this case it would not be unjust to order interest at 4% above base rate on the costs.
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The interesting aspect of this decision is that it seems that unless a fresh Part 36 offer is made during appeal proceedings, the Court of Appeal will not fail itself of CPR Part 36, which provides that the court can award costs on an indemnity basis and then award interest at a penal rate on those costs. So, if a party makes an offer to settle in litigation that is then subject to an appeal, a further Part 36 offer will need to be made in respect of the appeal proceedings if the appeal at court is to have power to award costs and interest at a penalty rate in respect of those appeal proceedings.