The Question
A claimant offers to settle for 91% of what he is claiming. He then wins in full. Is an offer that close to the full sum a genuine attempt to settle at all, or is it a formality dressed up to trigger the Part 36 consequences?
Timokhin v Timokhina [2026] EWHC 1194 (KB), Mr Justice Dexter Dias, 19 May 2026, says it can be genuine — and the reasoning is more useful than the result.
What Happened
The claim was for recognition and enforcement. On 20 May 2025 the claimant offered £380,000; the relevant period expired on 10 June 2025. He went on to succeed in full, in the sum of £417,416.67 — so the offer had represented a discount of just under 10%.
The defendant argued that an offer at that level was not a genuine attempt to settle for the purposes of CPR 36.17(5)(e), particularly because a recognition and enforcement claim is binary: it succeeds or it does not, so there is no middle ground to compromise.
Why the Argument Failed
The judge held that the binary nature of the claim was inherent in that kind of litigation and did not make a high-percentage offer inherently improper. What mattered was the strength of the claimant’s position: “I judge that a percentage settlement offer in the early 90s was justified here given the strength of the claimant’s case.”
The distinction drawn was between an offer that was “sober and realistic” and one that was “tokenistic and illusory”. A confident party who offers a modest discount is doing the first; a party who offers a discount so small it could never be accepted is doing the second. Percentage alone does not tell you which.
Who Has to Prove What
This is the part most worth taking away, because it applies far beyond these facts. The burden sits on the party resisting the Part 36 consequences, and the court described the standard as a formidable obstacle. The defendant had to establish that it would be unjust to apply the usual consequences, and failed.
So the practical posture is not “was this offer generous enough” but “can the paying party show injustice”. Those are different questions with different odds.
What Followed
The usual CPR 36.17(4) package: costs on the standard basis to expiry of the relevant period, costs on the indemnity basis thereafter, enhanced interest, and an additional amount. A payment on account of costs was ordered as well — on how those are calculated, see Cubic v TfL.
When those consequences arise, and how they differ between late acceptance and judgment, is set out in our guide to Part 36 late acceptance and CPR 36.17.
What This Case Does Not Say
It does not establish that a 9% discount is enough. There is no percentage threshold in Part 36 and Timokhin does not create one. The judge upheld this offer on thesefacts, because this claimant had a rational and reasonable basis for thinking his prospects were strong.
An identical offer in a case of genuine uncertainty would be a different proposition entirely, and anyone citing Timokhin for a numerical rule is citing it for something it declined to decide. The useful proposition is narrower and more durable: the genuineness of an offer is judged on the merits and the commercial reality at the time it was made, not on the size of the discount.
What to Record When You Offer
- the date of the offer and the expiry of the relevant period;
- the assessment of prospects at that date, in writing;
- what was known and unknown then, so hindsight can be excluded later;
- the commercial reasons for the level chosen; and
- any change in the evidence afterwards, which is the answer to a hindsight argument.
A contemporaneous note of why the number was chosen is worth more at the costs stage than any argument constructed afterwards.
A Note on Sources
Citation, court, judge, date, the sums and the quoted reasoning were taken from the approved judgment. One secondary report gave the date as 26 May 2026; the judgment gives 19 May 2026. The detailed figures for enhanced interest, the additional amount and the payment on account are as reported rather than taken from the judgment text.