​​The High Court grappled with the issue of what costs to award on acceptance of a Part 36 offer in a claim which had started in the Portal and then left, but which had been allocated to the multi track after the offer had been made, but before acceptance. 

 

The matter had first gone to HHJ Duddridge in Southend/Chelmsford on 26 Sept 2023, where he had decided it was unfair for the claimant to benefit in costs from late acceptance of the Part 36 offer.  It had been common ground that had the offer been accepted at the time it would have been made, the Claimant would have only been entitled to fixed costs under SIIIA of CPR 45.  However, the Circuit Judge had found that because Part 36 was a self-contained code, the rules of Part 36 should triumph.  However, CPR 36.20 was headed "where SIIIA of Part 45 applies".  SIIIA was disapplied retrospectively by the allocation to the multi track.

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At [62] the court held:

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"...there was in any event more force in the claimant’s argument that the defendant’s argument produced an absurd result: it would lead a claimant who has properly started her claim under a relevant Protocol in what then appeared to be a fairly standard RTA whiplash claim that turned out to be a claim of very significant value requiring very considerable expenditure on expert evidence and legal costs in a claim suitable for the multi-track – to be subsequently penalised in costs. It may well deter claimants from using the RTA Protocol in any case where there was any uncertainty about prognosis and sequelae and thus be counter to the intention of the 2013 reforms and the overriding objective. It could have a deterrent effect on using the relevant Protocols at an early stage and risk preventing cases from being dealt with expeditiously and fairly."

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​The High Court found that the Claimant was entitled to open costs at [74] thus:

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"...on allocation to the multi-track costs fall to be assessed in accordance with Pt 44 and are not fixed and calculated by reference to the tables."

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and at [76]:

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"..CPR 36.20 did not therefore apply to this case at the moment when the Pt 36 offer was accepted."

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and at [81]:

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"I therefore conclude that both on a purposive and also a literal reading of the rules where an ex-Protocol case is allocated to the multi-track, it comes out of Section IIIA by the wording of CPR 45.29B and Part 36(20) does not apply."

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Alex Hutton KC and Thomas Mason for the Claimant Appellant

Andrew Roy KC for the Defendant Respondent