QOCS, PART 36, TWO DEFENDANTS: SOME PROBLEMS

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.