Laura Attersley v UK Insurance Limited

Where a claim begun under the RTA Protocol is later allocated to the multi-track, the fixed-costs regime in Section IIIA of Part 45 is disapplied from allocation, including retrospectively for the purposes of applicable costs consequences. CPR 36.20 applies only while Section IIIA applies. A late acceptance of a Part 36 offer therefore attracts the ordinary rule in CPR 36.13, entitling the claimant to costs up to expiry of the relevant period assessed on the standard basis. The court should construe the rules purposively and literally so as to give effect to the exclusion of multi-track claims from the fixed-costs regime. The possibility that standard costs may produce a greater recovery after late acceptance does not make that construction absurd.

The claimant brought a negligence claim arising from a road traffic accident. It was started under the RTA Protocol, exited that Protocol because liability was disputed, and was later issued under Part 7 claiming up to £150,000. The defendant made a Part 36 offer of £45,000 before allocation. The claimant accepted it after the relevant period had expired and after the claim had been allocated to the multi-track.

The County Court held that the claimant was limited to fixed costs under CPR 36.20. The appeal concerned the interaction between CPR 45.29B, as amended following Qader v Esure Services Ltd, and CPR 36.20(4). The central issue was whether allocation to the multi-track removed the case from Section IIIA of Part 45 and thereby entitled the claimant to standard-basis costs up to expiry of the relevant period.

The appeal was allowed. The claimant’s costs up to expiry of the relevant period were to be assessed, if not agreed, on the standard basis under Part 44.

1. Effect of allocation. The purpose identified in Qader v Esure Services Ltd was that the fixed-costs regime was unsuitable for claims judicially determined to belong to the multi-track. CPR 45.29B gives effect to that purpose by providing that fixed costs apply only for as long as the claim is not allocated to the multi-track. The disapplication operates retrospectively on allocation.
2. Interaction with Part 36. CPR 36.20 is expressly confined to cases where Section IIIA of Part 45 applies. Once the claim was allocated to the multi-track, Section IIIA no longer applied. CPR 36.20 therefore did not govern the costs consequences of acceptance. The general rule in CPR 36.13 applied, subject to which the claimant was entitled to costs up to expiry of the relevant period, assessed on the standard basis.
3. Construction and alleged absurdity. A purposive construction was required, having regard to statutory purpose, context and the overriding objective. The claimant’s construction was not absurd. It could be reasonably open to a claimant to accept an offer late because circumstances had changed, and standard-basis costs did not constitute an impermissible reward for gaming the system. The defendant could have withdrawn the offer after allocation.
4. Authorities relied upon by the defendant. Solomon v Cromwell Group plc, Sharp v Leeds City Council, Broadhurst v Tan, Smith v Taylor, Williams v Secretary of State for Business, Energy and Industrial Strategy and Hislop v Perde concerned low-value or fast-track cases, or materially different rules, and did not alter the conclusion. Williams did not justify indirectly limiting costs to fixed costs because no unreasonable conduct had been found.
5. The court declined to lay down general guidance or presumptions concerning the subsequent assessment of costs.

• High Court (King’s Bench Division): appeal from the order of HHJ Duddridge dated 27 September 2023. The order limiting the claimant to fixed costs was set aside.
• County Court at Southend: ordered the defendant to pay the claimant’s fixed costs up to 25 March 2021, subject to any application under CPR 45.29J.