RXDX v Northampton Borough Council

Part 36 is a self-contained procedural code. Its consequences must be applied by reference to the language of the relevant rule, without importing contractual concepts or the general costs discretion under Part 44. Where the rule provides several possible consequences, the court must consider separately whether applying each consequence would be unjust. It may therefore order some consequences while withholding others. An indemnity costs order under CPR 36.14 cannot cover costs incurred before expiry of the relevant period.

Following a split trial on liability, judgment had been given for the claimant. The court had subsequently made costs orders under CPR 36.14 after the claimant obtained a judgment more advantageous than his own Part 36 offer. The claimant had offered to accept judgment for 80 per cent of damages, but the defendant did not accept within the relevant period.

The court had ordered indemnity costs apparently throughout, interest on those costs at five per cent above base rate, and no order for interest on damages or an additional amount. The application concerned whether the court could select between the consequences in CPR 36.14(3), and whether indemnity costs could run before expiry of the relevant period.

1. Application allowed in part. The earlier costs order was amended so that indemnity costs were limited to costs incurred after expiry of the relevant period, namely from 2 April 2015.
2. Part 36 is a self-contained code. It must not be confused with contractual notions, the general costs discretion under Part 44, or non-Part 36 offers such as Calderbank offers. The court relied on Gibbon v Manchester City Council [2010] 1 WLR 2081, Fox v Foundation Piling Ltd [2011] EWCA Civ 790 and Coward v Phaestos [2014] EWCA Civ 1256.
3. Under CPR 36.14(3), the court must consider separately whether each proposed consequence would be unjust in the circumstances. The rule does not require every consequence to be ordered as an indivisible package.
4. The circumstances justified withholding interest on damages and the additional amount because the overall value of the claim was unknown. They did not require the court to withhold indemnity costs or interest on those costs.
5. Indemnity costs under CPR 36.14 could not be ordered for any period before expiry of the relevant period. The order was therefore wrong to the extent that it covered earlier liability costs.

First-instance application concerning a subsidiary costs judgment following judgment for the claimant on liability. No earlier appellate decision is stated.