You are here: Case law » Pre Issue Part 36 Offer
The Defendant (D) made a Part 36 Offer prior to issue of proceedings. It was headed Without Prejudice Save As To Costs of Assessment and provided that...
"The defendant hereby makes a Part 36 offer in the sum of £4,100. This offer (1) is to settle the whole of your client's claim; (2) is intended to have the consequences of Part 36; (3) has a relevant period of 21 days during which the defendant will be liable for the claimant's costs in accordance with CPR 36.10 if the offer is accepted within that period; (4) is inclusive of interest until the expiry of the relevant period; (5) is made on the basis that there are currently no repayable benefits and the certificate of repayable benefits is valid throughout the relevant period; (6) does not take into account any counterclaim."
The Claimant accepted in the following terms...
"We write further to your Part 36 offer dated 3 February 2009 in the sum of £4,100, which we confirm is accepted. Please make the cheque payable to MTA Solicitors. We also attach a report of Mr Ernshaw, dated 7 January 2009, for your file. Acceptance is subject to payment of our reasonable costs and disbursements, to be assessed if not agreed. Acceptance specifically excludes any credit hire or credit repair claim which could be pursued separately on behalf of our client."
The Claimant asserted that there was a valid Part 36 Offer engaging CPR 36.10 (the costs consequences of Part 36) and, accordingly, he was entitled to his reasonable and proportionate costs pursuant to Part 44 of the CPR. The Defendant argued that as no proceedings had been issued at the time of acceptance of the offer CPR 36.10 was not engaged and the Claimant was unable to recover his pre-action costs.
Master Haworth favoured the Defendant's argument. Whilst the offer letter had stated that "acceptance is subject to payment of our reasonable costs and disbursements" it made no reference to the engagement of Part 36.10. If the wording had instead been "the Defendant would be liable for the Claimant's costs, including the costs pre-issue of proceedings in accordance with CPR 36.10" he would have found for the Claimant.
In concluding Master Haworth found.....
"Part 36 is a self-contained code. The rules of Part 36 must be complied with to the letter for the costs consequences of Part 36 to be engaged. In my judgment in this case they are not. Therefore the Claimant's costs in relation to the proceedings in which they have brought their Part 8 claim fall to be dealt with under 44.12A and the consequences of that are that the matter must be dealt with in accordance with 45.7, which sets out the costs to be allowed in costs only proceedings under the procedure set out in 44.12A..."
The Master however found that exceptional circumstances in view of the fact that the Defendant was "giving the claimant the run around" and putting him to "considerably more work than would otherwise be the case" in a low value road traffic accident claim and as such he was entitled to have his costs assessed under Part 45.12 (Road Traffic Accidents - Fixed Recoverable Costs).