A recent High Court judgment highlights the scope for confusion in applying Part 36 in a case where the formal roles of claimant and defendant do not reflect the reality of who is seeking a (greater) remedy in financial terms: The Procter & Gamble Company v Svenska Cellulosa Aktiebolaget SCA and another[2012] EWHC 2839 (Ch). The Civil Procedure Rule Committee is currently considering a number of issues regarding the operation of Part 36. It is not clear whether that review encompasses the application of the rules in the context of counterclaims and claims for negative declaratory relief, but in light of this decision such a review would be welcome.

The decision also raises interesting issues regarding the principles the court should apply in deciding which party is the “successful party” who should (in principle) be awarded its costs and whether it is possible to include a term as to costs in a Part 36 offer.

For more information, please see our Litigation Notes blog.