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Elgamal v Westminster City Council [2021] EWHC 2510 (QB) - A Decision Considering CPR 36.17 Where There Had Been Exaggeration But Not Fundamental Dishonesty - Nicholas Dobbs, Temple Garden Chambers

21/10/21. The judgment in Elgamal v Westminster City Council is likely to be of interest to practitioners for its discussion of the interpretation and application of the law relating to fundamental dishonesty (an update on that will follow shortly). The judgment is also of interest in so far as it addresses the costs consequences in circumstances where, although the claimant was successful at trial and had beaten their Part 36 offer, there were findings by the trial judge that there had been some exaggeration, though not such as to render a finding of fundamental dishonesty.

On appeal, the defendant contended that the judge had failed to properly address the question of whether it was unjust for them to be required to pay the claimant’s costs on an indemnity basis (having not responded to the claimant’s Part 36 offer). The defendant relied on CPR 36.17 which provides that the consequences there set out apply unless the court “considers it unjust to do so”.

The trial judge had made the following comments at paragraphs [17] and [18] of his judgment in respect of the costs consequences:

17. I go back to the real issue in this case and that is, and I remind myself that I have got to take into account all the circumstances of the case and I have spelt out what the circumstances of the case are when I considered the issue in relation to costs generally and, in my judgment, those circumstances do not change between Part 44 and Part 36, they are the same. That is that this claimant faced...

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