Kerry Underwood

PART 36: DOES A CLAIMANT GET INDEMNITY COSTS ON LATE ACCEPTANCE?

with 7 comments


Kerry Underwood

This blog is updated to 4 August 2016.

 

This subject is dealt with in my new book on Fixed Costs etc. To order one click here .

 

In Sutherland v Khan, Kingston-Upon-Hull County Court, Case number A81YM424

 

District Judge Besford, Regional Costs Judge, held that a late accepting defendant of a claimant’s Part 36 offer was liable to pay indemnity costs from the date of expiry of the time for accepting the offer.

 

This was a fixed costs case. Broadhurst v Tan and Taylor v Smith [2016] EWCA Civ 94 (23 February 2016) establishes that a successful Part 36 claimant, that is one who matches or beats her or his own offer, is entitled to indemnity costs on an open basis, that is that those indemnity costs are not limited to a sum equal to fixed costs.

 

I deal with the Broadhurst case in my…

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Written by kerryunderwood

August 5, 2016 at 8:08 am

Posted in Uncategorized

7 Responses

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  1. […] Kerry Underwood asks: Part 36: Does a claimant get indemnity costs on late acceptance ? […]

    • Hi Kerry

      I realise this may be a stupid question however I shall ask anyway, In a fixed costs matter on the fast-track is there an costs penalty on the Defendant in circumstances where pre-issue a part 36 offer is made by the Claimant and then during proceedings the Claimant accepts a Defendant Part 36 offer of a higher amount?

      G Singh

      September 6, 2016 at 4:25 pm

      • It is a very sensible question, to which there is no clear answer. The fact that it is a fixed costs case is a bit of a red herring – the issue applies in any case. A simple question – but no obvious answer. I will rephrase it:

        “Can a defendant avoid the costs consequences of late acceptance of a claimant’s Part 36 offer by making a higher offer, which the claimant then accepts, thus triggering a right to ordinary costs in the usual way, but not indemnity costs from expiry of the claimant’s offer, or will the court find that the claimant has beaten its first offer and is entitled to those indemnity costs? ”

        Does the same apply the other way round: can a claimant make a lower Part 36 offer than a previous one made by a defendant, thus avoiding paying costs from expiry of the defendant’s offer?

        Any help anyone?

        Kerry

        kerryunderwood

        September 7, 2016 at 3:25 pm

  2. Kerry

    We have a case where we put forward a Part 36 offer to the insurers some time ago.They have now put forward their own Part 36 offer which is higher than ours!We propose accepting but what is the position on costs?Presumably we are stuck with standard rather than indemnity costs.

    John

    August 24, 2016 at 11:48 am

    • John

      You will see from the reply to G Singh that you are not the only one raising this point and apart from blog comments I have had a number of emails on it.

      I do not know the answer but, as above, I rephrased the question slightly:-

      “Can a defendant avoid the costs consequences of late acceptance of a claimant’s Part 36 offer by making a higher offer, which the claimant then accepts, thus triggering a right to ordinary costs in the usual way, but not indemnity costs from expiry of the claimant’s offer, or will the court find that the claimant has beaten its first offer and is entitled to those indemnity costs?”

      Does the same apply the other way round: can a claimant make a lower Part 36 offer than a previous one made by a defendant, thus avoiding paying costs from expiry of the defendant’s offer?

      If I were you I would seek an order for indemnity costs from the date of expiry of your original offer.

      Remember that the court has a very wide discretion on costs and in my view definitely has the power to make such an order.

      If you do so, then please let me know how you get on.

      Thanks

      Kerry

      kerryunderwood

      September 8, 2016 at 8:26 am

  3. It seems it may be a not unusual situation.You will note from my previous post that I believe we are stuck with standard costs.However if you take a rsk and accept out of time does this give you an opportunity to apply to the court for indemnity costs?

    John

    September 7, 2016 at 3:41 pm

  4. Reply to your earlier point shortly. No, I do not think that accepting out of time helps – and of course they might withdraw it. Argument to court would be that you have beaten your offer. Could also argue abuse of process.

    Kerry

    kerryunderwood

    September 7, 2016 at 4:08 pm


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