You’ve Beaten Your Own CPR 36 Offer, Are You Really Only Recovering Fixed Costs Thereafter?
In conjoined appeals in Broadhurst – v – Tan  EWCA Civ 94, on Tuesday 23rd February 2016 the Court of Appeal confirmed that in cases where a Claimant obtains judgment at least as advantageous as their own CPR 36 offer in a case that no longer continues under the RTA or EL/PL Protocol, their entitlement to indemnity costs thereafter is not limited to fixed costs.
The Court considered the provisions of CPR 36.14A (now following renumbering CPR 36.20) in tandem with the provisions of CPR 45.29, the Defendant contending that fixed costs continued to apply post the offer notwithstanding that costs were payable on an indemnity basis.
It is perhaps surprising that the point was taken, given the express statement in the Explanatory Memorandum to the 2013 amendments that a claimant in such circumstances would not be so limited, but that would of course leave out of account the sizeable sums of money at stake and the lack of complete clarity in the rules themselves.
Ultimately, the Court of Appeal reached its decision as ‘a straightforward matter of interpretation’ finding that the tension between rule 45.29B and rule 36.14A (as was) must be resolved in favour of rule 36.14A.
With the spectre of fixed costs in clinical negligence claims getting ever clearer, Broadhurst is an example the rule makers might have regard to when refining the exclusion and escapes clauses of any new rules.