Overview

Gibbon v Manchester City Council suggested that CPR Part 36 should be strictly interpreted, leaving little room to extend the provision’s scope beyond its express wording. Now an alternative interpretation has been handed down by a differently constituted Court of Appeal in Kunaka v Barclays Bank.

Commentary:

In our view, the only way to eradicate completely the problems caused by these somewhat contradictory and, at times, confusing interpretations of the scope of Part 36 is to amend its terms to make clear the precise circumstances in which the courts may consider factors beyond those provided for in the express wording of Part 36.

Arguably, to achieve the overriding objective principle of fairness there will be factors which have to be considered and external factors brought into the equation. To ensure that justice is done and is seen to be done, however, these should be spelled out; until they are, the yo-yoing effect from a wide interpretation of Part 36 to a narrow one seems inevitable to continue, as hard cases make bad law.

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