Kerry Underwood


with 9 comments

A client is a passenger in a bus which is involved in a collision with a car and the passenger has no idea what happened as they were reading and not paying attention to what the bus was doing.
The passenger is injured and eventually issues proceedings against the bus company who blame the driver of the car and the passenger then issues against the driver of the car.


The driver of the car then makes a Part 36 offer in the sum of £2,500.00, which is a good offer.


However Part 36 provides that an offer cannot be accepted by the claimant unless all defendants consent and the bus company has not consented as they want their costs.
There are different insurers involved for the bus company and the car driver.


Ignoring the Part 36 point for the moment, can the bus company avoid the QOCS protection that the passenger has by setting off the costs order that it will get, but be unable to enforce, against the damages?


On the face of it the answer should be no as set-off is between parties where A owes B money and B owes A money and the fact that C is owed money should not affect the transaction between and A and B.


However there is a case at first instance which came to a different view.


As far as the Part 36 point is concerned it appears that the claimant could make a Part 36 offer in the sum of £2,500.00 as there is nothing to prevent a defendant from accepting a claimant’s offer in such circumstances.


Alternatively the claimant could ask the defendant to make a non-Part 36 offer of £2,500.00 and undertake to accept such an offer within 10 minutes of it being made, or whatever.
Thus the rule in Part 36 appears to be capable of being got round if there is a genuine wish to settle between, in this case, the passenger and the car driver, but there remains the issue of enforcement or otherwise of the costs order which the bus company will inevitably obtain on discontinuance or on dismissal of the claimant’s claim against the bus company.


Written by kerryunderwood

July 28, 2016 at 9:56 am

Posted in Uncategorized

9 Responses

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  1. If Part 36 offer does not allow ‘CLAIMANT’ to accept without consent from all parties, what if CL asks Def to make the Part 36 and conclude that way?


    July 28, 2016 at 12:00 pm

    • That is what happened here, but the claimant is not allowed to accept the offer – that is the point of this piece – it was a defendant’s Part 36 offer.



      July 28, 2016 at 1:28 pm

    • Sorry. I was supposed to type what if the Claimant makes the offer to the Defendant. That would be a simple solution right?


      July 29, 2016 at 9:18 am

      • Yes, indeed, which is what I suggest in this piece.


        July 29, 2016 at 9:21 am

      • I think this was my case that I discussed with you at a training session. In the end the cars insurers paid the bus solicitors costs

        Michelle arathoon

        July 29, 2016 at 10:04 am

      • Yes, it was. My boss and yourself had quite the discussion !!!!


        July 29, 2016 at 1:09 pm

  2. Hi Kerry,

    The car insurers eventually paid the costs of the bus company

    Kind regards

    Michelle Arathoon

    July 28, 2016 at 12:27 pm

  3. Ah – the benefits of coming on courses! 😄😄



    August 1, 2016 at 9:19 am

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