PM, R (on the application of) v The Director of Public Prosecutions

Part 36 consequences can apply where detailed assessment proceedings are concluded by agreement rather than judicial determination. The relevant question is whether the agreed sum is at least as advantageous to the receiving party as its effective Part 36 offer. The parties’ lack of awareness of the consequences does not disapply them. Parties may make settlement conditional upon excluding Part 36 consequences, but an unexpressed intention is insufficient. For the purposes of detailed assessment, completion by consent can satisfy the reference to judgment in CPR r.47.20. The court must apply the consequences in CPR r.36.17(4) unless it would be unjust to do so.

The claimant had successfully challenged the defendant’s decision to prosecute him. The judicial review proceedings were withdrawn on terms that the defendant pay the claimant’s reasonable costs, subject to detailed assessment.

During the detailed assessment hearing, the court determined preliminary issues concerning interest and hourly rates. The parties then agreed that the defendant would pay £65,000 in respect of the costs claimed, together with agreed interest. That recovery was more advantageous than the claimant’s earlier effective Part 36 offer of £65,542.57 inclusive of interest to expiry of the relevant period.

The issue was whether the agreement triggered the consequences in CPR r.36.17(4), despite the absence of a contested judicial determination.

1. Part 36 consequences. The court held that the agreement was more advantageous to the claimant than the effective Part 36 offer. CPR r.36.17(4) therefore applied unless it would be unjust to make the specified orders. The defendant had not argued that applying those consequences would be unjust.
2. No implied exclusion. The defendant’s lack of intention to trigger Part 36 consequences did not alter the effect of the agreement. Parties negotiating the conclusion of detailed assessment proceedings should identify any effective Part 36 offer and its consequences. They may make settlement conditional upon excluding those consequences, but no such term had been agreed.
3. Completion by consent. The court rejected the submission that “judgment” required judicial determination of the whole or part of the claim. Under CPR r.47.20, detailed assessment proceedings are completed when the parties reach an agreement which concludes the assessment. Judicial determination is not a necessary feature.
4. Consent orders. Applying Smithstone v Tranmoor Primary School [2026] EWCA Civ 13, a consent order is to be understood by its substance and effect. An order requiring payment of a specified sum may be both a judgment and an order, even where it follows agreement rather than adjudication.
5. The court accordingly allowed the Part 36 consequences under CPR r.36.17(4), and invited the parties to agree an order dealing with the consequences and the costs of detailed assessment. A short hearing was to be arranged if necessary.

Not stated in the judgment.