Sarah Robson Barrister - Ansell & Evans v AT&T
Ansell & Evans v AT&T
DDJ Lynch, Slough County Court, 12th June 2017 first instance
Oxford CC 2017 on appeal

Here the Claimants left the RTA Portal unreasonably, then settled the matter by way of Part 36 offer.  The Claimants, represented by Kevin Latham, argued that on acceptance of a Part 36 offer, the Defendant could not seek costs to be limited under CPR 45.24 because the costs were governed by CPR 36.20, which specifically directed the tables in CPR 45 SIIIA, rather than more generally to SIIIA.  However, Sarah successfully argued that if the Claimant had not left the Portal unreasonably, parties would not have been able to make a Part 36 offer, and you could not retrospectively 'correct' an earlier unreasonable exit.  Furthermore CPR 36.20 was  headed 'Cost consequences of acceptance of a Part 36 offer where SIIIA of Part 45 applies  Thus if costs were to be assessed under CPR 36.20, the costs were those under SIIIA, which included CPR 45.24.   The lower court accepted Sarah's submissions and confirmed that CPR 45.24 remains open for a court to use even on acceptance of a Part 36 offer.

The Claimant appealed, but unsuccessfully.  The appellate court upheld the decision at first instance, noting that CPR 45.29(1) specifically stated it was subject to ss(3) which preserved the court's power in CPR 45.24.

The appeal transcript is awaited and will be published here when available.

There is a clear tension between decisions on the point.  Higher authority would be welcome.  The Claimant's argument that Part 36 gives certainty has seductive simplicity.  However, that is clearly not what the rules say.  That does not stop some judges from being so seduced...