Successful part 36 offer removes cap on provisional assessment costs, High Court rules
Taussig: Broadhurst provided the answerTaussig: Broadhurst provided the answer
A successful part 36 offer in a provisional assessment removes the £1,500 costs cap, the High Court has ruled.
Overturning a decision of Master Whalan in the Senior Courts Costs Office, Mrs Justice Laing followed the reasoning of the Court of Appeal earlier this year in Broadhurst v Tan, when it ruled that a party who beat a part 36 offer in a case where fixed fees applied was eligible for indemnity costs,
The thus-far unreported case of Lowin considered whether CPR 36.17(4) – indemnity costs on beating an offer – dislodged the £1,500 cap set out in rule 47.15(5) for the costs of a detailed assessment that concluded at provisional assessment stage.
Lowin will come as some comfort to Claimant lawyers curently reeling from SCCO first instance decisions on proportionality in the BNM and May cases. The Higher Courts message is now even clearer than it was post Broadhurst. Part 36 offers should be made in both the substantive claim and within the costs proceedings, unless there is good reason not to. The writer cannot think of a good reason why a Part 36 offer could not be made at some stage of each process.
