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Gordon,
I think readers might be misled by the line “The trial judge ordered that the claimant should recover her costs up to the relevant date of expiry of the Part 36 offer. The defendant would receive their costs thereafter. (It was agreed on appeal that the Supreme Court decision in Ho -v- Adelsun meant that the defendant’s costs order could not be set off against costs or damages).”
It’s a reference to Ho v Adelekun, D can’t deduct costs orders in D’s favour from costs orders in C’s favour or settlement sums. D can still deduct from orders for damages, so surely D could dip into the £3,805 odd damages in this case to meet the costs order in its favour. Maybe James will say that I’m wrong about what was agreed here, but I doubt that D agreed that it could not get at the ordered damages to meet its costs.
Cheers, Matthew White, St John’s Chambers