INDEMNITY COSTS ON APPEAL AFTER PART 36 OFFER

For the second time today I express my thanks to John McQuater. This time for drawing my attention to the  Court of Appeal decision on costs in Summers -v- Bundy (11/02/2016)*  This case shows the importance of making Part 36 offers in relation to appeals. (*There is no neutral citation, the short judgment is available on Lawtel).  There is probably important work to be done on the importance of Part 36 offers and appeals.

KEY POINTS

• The claimant beat its own Part 36 offer on appeal.
• The defendant was ordered to pay the claimant’s costs on an indemnity basis from the date of expiry of the offer.

THE CASE

The Court of Appeal decided that the claimant was entitled to an additional 10% liability on damages, see Summers -v- Bundy [2016] EWCA Civ 126. The judge at first instance had decided that the claimant was not entitled to a 10% uplift of general damages. That decision was overturned on appeal.

Prior to appeal the claimant had made an offer to accept an additional 9% on general damages. That offer was clearly beaten at the appeal.

THE DECISION ON COSTS

• The defendant was to pay the claimant’s costs.
• The defendant to pay the claimant’s costs on an indemnity basis from the end of the relevant period.

The court felt it unjust to award any enhanced interest or additional amount.

RELATED POSTS ON PART 36

• Costs should not normally be reduced when a claimant beats their own Part 36 offer: Court of Appeal decision.
• Part 36: the costs consequences of late acceptance
• Part 36 offer did not encompass payment on account
• Fixed costs and Part 36: the judgment in the Court of Appeal.
• Lord Chancellor gets a bonus: the powerful results of a claimant’s Part 36 offer.
• Not a racing certainty: but indemnity costs follow claimant’s Part 36 offer.
• Part 36: when the normal costs penalties may not apply
• Is this a claimant’s or defendant’s offer? Another important decision on Part 36
• Clarification of a Part 36 offer has a major effect on costs.
• Costs where a claimant accepts a Part 36 offer late: two cases where the claimant came to grief
• Another case where there was an invalid Part 36 offer
• Is this a Part 36 offer I see before me? That’s an important question
• How relevant are Part 36 offers to issue based orders?
• Knowing the risks and advantages for the claimant in the new Part 36.
• The costs consequences of Part 36 offers: do they always apply? The cases in detail.
• Costs consequences of Part 36 offers: some interesting examples
• Costs, conduct, Part 36 and the “Winning Party”.
• Interest and costs when a claimant beats their own Part 36 offer.
• Costs of £7 million: Part 36 bites hard on claimants who cleared a first hurdle but fell at the second.
• Claimant beats own Part 36 offer and receives an additional £75,000 in damages.
• The dangers of a Part 36 offer: Claimant pays three times more in costs than he receives in damages.
• Another example of a successful defendant not recovering all of its costs (and of the advantages of a Part 36 offer).

• Percentage costs orders after a claimant beats their own Part 36 offer: a High Court decision.
• Very important decision on Part 36 offers, assessment of costs and additional amounts when offers not beaten.
• Increased interest and costs after claimant beats its own Part 36 offer.
• Part 36 offer does not override the need to serve the claim form.
• Part 36: Indemnity costs when a defendant accepts out of time.

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