Kerry Underwood

PART 36 AND LATE ACCEPTANCE: SUPER OMNISHAMBLES

leave a comment »


I am organizing, chairing, and speaking at a Part 36 Conference in Central London on Tuesday 14 November with Ben Williams QC and David Pilling. For more information, or to book, click here.

In Whalley v Advantage Insurance Company Limited, Kingston-Upon-Hull County Court, 5 October 2017, case number – B58YM864

Regional Costs Judge Besford held that on late acceptance by a Defendant of a Claimant’s Part 36 offer, the Claimant was only entitled to fixed costs, in a fixed costs case, and not indemnity costs.

As we have seen from previous posts of mine on this subject, First Instance and Circuit Judge decisions are all over the place on this subject, and apparently the issue will be heard by the Court of Appeal reasonably soon.

Why then am I bothering to mention this further decision?

Because it adds a new ingredient to the stew.

The reason is that District Judge Besford, in this decision, actually refutes his own decision in Sutherland v Khan, which I have reported extensively elsewhere.

There, the judge held that on late acceptance by a Defendant a Claimant was entitled to indemnity costs and not fixed costs.

He has now changed his mind.

Now, there is something to be said in praise of anyone who has the courage to admit that they were wrong, but this does add yet further confusion to this vitally important issue.

It is chaos.

I do not blame the individual judges as the Civil Procedure Rules are entirely unhelpful and there is a clear contrast between CPR 45.29 and CPR 36.

This is far from the only instance in which there are mutually contradictory Civil Procedure Rules.

This tension, on this matter of extreme importance as far as costs are concerned, has been apparent for nearly five years and yet throughout the whole of that time the Civil Procedure Rules Committee have not thought it necessary to amend the rules, or issue a Practice Direction.

Soon we will have a new Intermediate Track, with a streamlined procedure and fixed costs in virtually all civil litigation where the damages are £100,000.00 or less.

One hopes that the Civil Procedure Rules Committee will draft the new Intermediate Track Fixed Costs Rules with rather more care than they have drafted the existing Fast Track Fixed Costs Rules.

 

Also see:

PART 36 AND INDEMNITY COSTS

ACCEPTING A PART 36 OFFER DURING TRIAL

PART 36 AND INDEMNITY COSTS ON LATE ACCEPTANCE: THE CHAOS CONTINUES

PART 36 AND LATE ACCEPTANCE: EVEN MORE CHAOS

FIXED COSTS AND PART 36: POST 3

PART 36: CLAIMANT ORDERED TO PAY INDEMNITY COSTS ON LATE ACCEPTANCE

Advertisements

Written by kerryunderwood

October 31, 2017 at 8:53 am

Posted in Uncategorized

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: