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Attersley v UK Insurance Ltd
Factual and Procedural Background
The Plaintiff was injured in a road traffic accident on 9 March 2018 when a vehicle driven by the Defendant's insured turned right across the Plaintiff's path and collided with her car. On 19 March 2018 the Plaintiff submitted a Claim Notification form (RTA1) under the RTA Protocol, valuing the claim up to £10,000 and identifying soft tissue, whiplash and other injuries. The claim exited the RTA Protocol on 9 April 2018 after the Defendant disputed liability. The Defendant admitted liability on 29 April 2019.
Shortly before the limitation period expired, on 13 February 2021 the Plaintiff issued a Part 7 claim form alleging up to £150,000 in damages and served three medical reports. The Defendant filed a defence on 4 March 2021 and made a Part 36 offer the same day for £45,000; that offer was not accepted within the 21-day relevant period.
At a case management conference on 5 January 2022 the case was allocated to the multi-track, permission was given for multiple experts and a five-day trial was estimated; a costs management order was made. The Plaintiff accepted the Part 36 offer on 8 July 2022, after the relevant period had expired and while the case had been allocated to the multi-track. It was common ground that had the offer been accepted within the relevant period the Plaintiff would have been entitled only to fixed costs subject to rule 45.29J, and that the Plaintiff offered no explanation for delayed acceptance.
Legal Issues Presented
- Whether the Plaintiff is restricted to fixed recoverable costs under Part 45 (Section IIIA) following late acceptance of a Part 36 offer, or whether costs are payable on the standard basis under rule 36.13.
- Alternatively, whether the court should exercise its discretion to assess the Plaintiff's costs at a level equivalent to fixed costs (relying on Williams) if fixed costs do not apply directly.
Arguments of the Parties
Plaintiff's Arguments
- The decision in Qader v Esure Services Ltd established that the fixed costs rules in Section IIIA of Part 45 cease to apply to a case allocated to the multi-track; once allocated the fixed costs regime is disapplied and rule 36.13 applies, so the Plaintiff is entitled to standard basis costs.
- There was no suggestion the Plaintiff gamed the system or acted unreasonably in delaying acceptance; allocation to the multi-track reflected the nature of the case and it is appropriate that costs be assessed on the standard basis.
- In the alternative, if rule 36.20 applied, it must be read in light of the whole of Section IIIA, including rule 45.29B, to reflect the legislative intention that fixed costs never apply to multi-track cases.
- Williams is inapplicable because it concerns unreasonable conduct; no such finding was made here.
Defendant's Arguments
- The CPR should be given a purposive construction and specific rules prevail over general ones; the Plaintiff's construction would perversely reward delayed acceptance and undermine the overriding objective and Part 36's purpose of encouraging early settlement.
- Rule 36.20 expressly applies where a claim no longer continues under the RTA Protocol and unambiguously provides for fixed costs; Section IIIA applies to ex-Protocol claims and rule 36.20 governs costs consequences where the relevant period expired while the claim remained within Section IIIA.
- Allowing standard costs after late acceptance would put defendants in a worse position than if the offer had been accepted within the relevant period; allocation to the multi-track after the expiry of the relevant period should not alter the costs regime applicable at that expiry date.
- Alternatively, if fixed costs do not apply directly, the court should assess costs at a level equivalent to fixed costs under Williams.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Qader v Esure Services Ltd [2016] EWCA Civ 1109; [2017] 1 WLR 1924 | That the fixed costs rules in Section IIIA of Part 45 should not apply to cases allocated to the multi-track; court corrected drafting to reflect that intention. | The Plaintiff relied on Qader to argue Section IIIA is disapplied on allocation; the court considered Qader's scope but rejected that it disapplies Section IIIA retrospectively for all purposes including Part 36. |
| Williams v Secretary of State for Business Energy and Industrial Strategy [2018] EWCA Civ 852; [2018] 4 WLR 147 | Authority for assessing costs by reference to fixed-cost levels in cases of unreasonable conduct (failure to follow protocol). | The Defendant relied on Williams as an alternative; the court found Williams concerned unreasonable conduct and held it unnecessary to consider that ground. |
| Solomon v Cromwell Group Plc [2011] EWCA Civ 1584; [2012] 1 WLR 1048 | Principle that where there is tension between a general and a specific rule, the specific rule prevails. | The court applied the principle that rule 36.20 (specific provision) prevails over more general Part 45 provisions if conflict arises. |
| OMV Petrom SA v Glencore International AG [2017] EWCA Civ 195; [2017] 1 WLR 3465 | Illustration of Part 36 operating as a carrot and stick to encourage early settlement by putting costs risk on the offeree. | The court cited the case to explain Part 36's purpose of encouraging early settlement and allocating costs risk to claimants. |
| Matthews v Metal Improvements Co Inc [2007] EWCA Civ 215; [2007] C.P. Rep 27 | Illustration that a reasonable early offer lets a defendant cast the costs risk onto the claimant. | Used to support the characterisation of Part 36's purpose in allocating costs risk. |
| Inco Europe v First Choice Distribution [2000] 1 WLR 586 | Principle that a court can correct a drafting error in rules to give effect to legislative intention. | Referenced in relation to Qader, where the court corrected Part 45 drafting to reflect intention that fixed costs not apply to multi-track cases. |
| Gibbon v Manchester City Council [2010] EWCA Civ 726; [2010] 1 WLR 2081 | Part 36 is a structured, prescriptive code where certainty is desirable for litigants. | Cited to underscore the need for certainty in Part 36 and support textual analysis favoring a clear application of rule 36.20. |
| Ho v Adelekun (No. 1) [2019] EWCA Civ 1988; [2019] Costs LR 1963 | An interpretation that CPR 45.29B's effect on allocation might be prospective (ceasing to apply prospectively on transfer to multi-track) rather than retrospective. | Cited to support the view that allocation to the multi-track does not automatically disapply fixed costs retrospectively for all purposes. |
Court's Reasoning and Analysis
The court framed the primary question as whether rule 36.13 or rule 36.20 governs the costs consequences of the Plaintiff's late acceptance. The analysis began with the text: rule 36.13 is expressly subject to rule 36.20, and rule 36.20 applies where a claim no longer continues under the RTA Protocol pursuant to rule 45.29A. It was common ground the claim fell within rule 45.29A when issued and remained so until allocation to the multi-track.
The court concluded that on a straightforward textual reading rule 36.20 applies where the relevant period expired while the claim fell within Section IIIA, and thus governs the consequences of late acceptance. The court rejected the Plaintiff's broader reading of Qader as disapplying Section IIIA retrospectively for all purposes (including Part 36). Qader addressed only the internal scope of Part 45 and did not consider interplay with Part 36; it did not establish a universal retrospective disapplication of Section IIIA.
The court emphasised coherence and certainty in the operation of Part 36: where the relevant period expired while fixed costs applied, the defendant's exposure to costs should be limited to the fixed-costs environment applicable on that expiry date. The court held there was no conflict requiring rule 45.29B to be read as excluding rule 36.20; if conflict existed, rule 36.20 (the specific provision) would prevail. The court therefore concluded rule 36.20, not rule 36.13, determines costs consequences here.
The court noted ancillary scenarios (offers made after allocation, or where allocation occurs during the relevant period) raise uncertainty and suggested the Rules Committee might wish to consider clarifications, but declined to decide those scenarios in this appeal.
Holding and Implications
HOLDING: The appeal is allowed and the order of Judge Duddridge is restored.
Direct effect: the Plaintiff is restricted to the fixed costs recoverable under Section IIIA of Part 45 applicable as at the date on which the relevant period expired, and the decision of Judge Duddridge that rule 36.20 governs in these circumstances is reinstated. The court did not consider it necessary to determine the alternative Williams-based ground and declined to express concluded views on related scenarios not squarely before it, suggesting only that the Rules Committee might consider clarifying amendments.
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