Cases of Note
Gillian Richardson v Wakefield Council
Harry East appears in first instance case on the assessment of costs where Part 36 offer was accepted outside the relevant period
The hearing was before District Judge Jackson in the Wakefield County Court. Mr East was instructed by Kennedys Solicitors.
This subject matter is one of the last unsettled areas in the fixed costs regime, which has recently seen the decision in Broadhurst v Tan  EWCA Civ 94 which ruled that Claimant’s are entitled to their actually incurred costs assessed on the indemnity basis when they beat their own Part 36 offer at trial where the fixed costs regime applies.
A Part 36 offer had been accepted by the Defendants approximately 1 month after the expiry of the relevant period. The Claimant’s contested that they were thus entitled to the costs during this period on the indemnity basis, which would be supplemental to the fixed costs regime under 45.29D where the case settles before trial.
The Claimant’s relied in part on the decision of the Court at Kingston Upon Hull in Sutherland v Z A Khan April 21st 2016 [Unreported]. There, the District Judge had seemingly reasoned that as the parties could not agree costs the rule in CPR 36.13(5) applied and under that rule, when considering whether or not it would be unjust to make the order for costs, the court should bare in mind the matters under CPR 36.17(5). As CPR 36.17 deals with costs post judgment, and such costs should be awarded on the indemnity basis, the same ought to apply in these instances.
The Defendant’s contested that such reasoning conflated two separate rules and that the starting point for assessing costs in situations where the Part 36 offer was accepted outside of the relevant period but pre trial was still the case of Fitzpatrick Contractors Ltd v Tyco Fire and Integrated Solutions (UK) Ltd . In such instances the costs should only be awarded on the standard basis. Therefore, the only costs applicable could be fixed costs, as they could be the only costs reasonably incurred under the rule in CPR 45.29D.
District Judge Jackson found a middle ground in her ruling. She found that the rules had been conflated in the case of Sutherland and that the staring point for awarding costs should be on the standard basis. However, that did not mean that the only costs applicable would be the fixed costs but rather the costs actually incurred during the period and that it would be those costs that would be assessed on the standard basis.
No order as to costs was made in the application.
Both sides were granted permission to appeal the decision and the matter now waits to be decided by the higher courts.
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