Part 36: no presumption in favour of indemnity costs on late acceptance

July 23, 2018

Where a defendant accepts a claimant’s Part 36 offer after expiry of the 21 day period, many claimants (and legal commentators) have argued that the claimant should be entitled to recover indemnity costs from the expiry of the relevant period, just as they would if the case had gone to trial and the same result had been achieved.   This argument has been particularly attractive to claimants where fixed costs apply, as an order for indemnity costs will allow the claimant to recover more than fixed costs.  A number of County Court Judges and District Judges have accepted this argument in PI actions to which fixed costs apply. 

The Court of Appeal has now decided in the appeals of Hislop v Perde and Kaur v Ramgharia Board [2018] EWCA Civ 1726 (a) that there is no presumption in favour of indemnity costs on late acceptance of a claimant’s Part 36 offer; and (b) that where this occurs in fixed costs cases the recoverable costs are those defined by section IIIA of Part 45, and the general jurisdiction as to costs in CPR36.13 has no role to play, meaning there is no place for assessed costs.

Click here to read the full case note by Andrew Post QC and Imran Benson

Click here to read the full judgment

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