The judgment reinforces the principle established in Qader v Esure Services Ltd [2016] EWCA Civ 1109 that fixed costs do not apply retrospectively once a case is allocated to the multi-track, even where a Part 36 offer was made prior to allocation.
Background & Procedural History
The claimant, Miss Laura Attersley, initiated a personal injury claim under the RTA Protocol for low-value road traffic accidents. Due to a dispute on liability, the claim exited the Protocol and proceeded under Part 7, with the claimant revising the value to a maximum of £150,000.
The defendant, UK Insurance Ltd, made a Part 36 offer of £45,000, which the claimant did not accept within the 21-day "relevant period." Subsequently, the case was allocated to the multi-track due to its complexity and value. The claimant later accepted the Part 36 offer out of time, after allocation.
A dispute arose as to whether the claimant was entitled to:
- Standard assessed costs (as per CPR 36.13), on the basis that fixed costs no longer applied post-allocation to the multi-track (Qader principle); or
- Fixed costs up to the expiry of the relevant period, as per CPR 36.20(4), which applies where Section IIIA of Part 45 (fixed costs regime) is engaged.
County Court Decision
At first instance, HHJ Duddridge held that fixed costs applied, reasoning that:
- Part 36 is a self-contained code, and CPR 36.20(4) specifically governs costs consequences where Section IIIA of Part 45 applies.
- The claimant should not gain an advantage by accepting late after allocation to the multi-track.
- The Qader decision did not override the specific provisions of Part 36.
High Court Appeal
Mrs Justice Stacey allowed the appeal, holding:
Qader Principle Applied - The fixed costs regime was never intended to apply to multi-track cases. CPR 45.29B (as amended post-Qader) explicitly states that fixed costs apply only "for as long as the case is not allocated to the multi-track”. Once allocated to the multi-track, fixed costs are disapplied, and standard assessed costs apply.
Part 36 Does Not Override This Principle - CPR 36.20(4) only applies where Section IIIA of Part 45 applies. Since allocation to the multi-track disapplies Section IIIA, CPR 36.20(4) does not apply. The general rule in CPR 36.13 (standard costs for accepted Part 36 offers) therefore governs.
No Absurdity in Claimant’s Interpretation - The defendant argued that allowing standard costs for late acceptance would create a perverse incentive to delay acceptance. The court rejected this, noting:
- The defendant could have withdrawn the offer after allocation.
- The multi-track allocation justified higher costs due to the case’s complexity.
- The Qader principle ensures fairness for claimants in higher-value cases.
Outcome & Key Takeaways
- Fixed costs do not apply to cases allocated to the multi-track, even if they began under the RTA Protocol.
- CPR 36.20(4) (fixed costs for late acceptance) does not apply where the case has been allocated to the multi-track.
- The Qader amendment to CPR 45.29B ensures fairness by preventing fixed costs in complex, high-value cases.
- Defendants can protect their position by withdrawing Part 36 offers if a case is reclassified as multi-track.
Conclusion
This decision provides clarity on the interaction between Part 36 and fixed costs in multi-track cases. It confirms that standard basis assessed costs apply once a case is allocated to the multi-track, even where a Part 36 offer was made prior to allocation.
