Essendi UK Hotels 2 Limited v London Property Company Limited (Preliminary issue Part 36 CPR)

Facts

The claimant, Essendi UK Hotels 2 Limited, and the defendant, London Property Company Limited, were parties to technology and construction litigation in which HHJ Stephen Davies tried preliminary issues from 4 to 12 March 2026. The claimant was substantially the successful party, and judgment was handed down on 5 June 2026 ([2026] EWHC 1354 (TCC)). Other issues remained to be tried, and the judge was the allocated trial judge for them. The claimant wished to seek its costs of the proceedings down to the date 21 days after the defendant's earliest offer under CPR Part 36, on the footing that the offer could not sensibly affect costs incurred before it. To do so it needed to tell the judge the date of that offer. The defendant, which had already agreed that the court could be told it had made the offer, contended that CPR rule 36.16, properly construed, forbade the trial judge from being told the date. Both sides accepted that the judge fell within the definition of trial judge. The parties agreed that the point should be decided first as a preliminary issue, so that the claimant would not prepare a costs application that could not proceed. The hearing took place on 18 September 2026.