Background

The Court of Appeal has handed down judgment for the defendant in an important decision on the operation of Part 36 and the fixed recoverable costs. The claim began under the RTA Protocol and exited following a liability dispute. Part 7 proceedings were issued and the claim was later valued at £150,000. The defendant made a Part 36 offer of £45,000. Had the claimant accepted the offer within the relevant period she would have been entitled to no more than fixed recoverable costs. The case was later allocated to the multi-track before acceptance of the defendant’s Part 36 offer 16 months late.

The Issues

The Court of Appeal was required to determine whether late acceptance of the Part 36 offer limited the claimant to Fixed Recoverable Costs in accordance with the specific provisions of Rule 36.20 relating to claims commenced using the RTA Protocol; or whether the claimant was entitled to standard basis costs because the fixed costs regime no longer applied at the date of acceptance by reason of multi-track allocation and Rule 45.29B.

Held

The Court held that fixed costs applied. The relevant period expired while the claim remained within Section IIIA of Part 45, as a claim originally started under the RTA Protocol. The fact that the claim was later allocated to the multi?track did not alter the cost consequences.

Comment

Attersley v UK Insurance Limited confirms that defendants can anchor costs liability to the fixed regime by making Part 36 offers, establishing that Rule 36.20 is a self-contained code for claims in the RTA Protocol. The Court of Appeal ruled that the costs regime is determined by the status of the claim when the offer expires, preventing claimants from avoiding fixed costs by delaying acceptance until after track reallocation. 

See a copy of the Judgment here:

https://www.bailii.org/ew/cases/EWCA/Civ/2026/217.html 

< Back to case list