Q&As

If a Part 36 offer is accepted out of time pre-issue in a road traffic accident claim, is the Defendant entitled to the payment of their costs from the expiry of the offer even if the claim has not moved forward a stage? If so, can the Defendant request that their costs are paid out of the Claimant's damages?

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Published on LexisPSL on 24/08/2018

The following PI & Clinical Negligence Q&A provides comprehensive and up to date legal information covering:

  • If a Part 36 offer is accepted out of time pre-issue in a road traffic accident claim, is the Defendant entitled to the payment of their costs from the expiry of the offer even if the claim has not moved forward a stage? If so, can the Defendant request that their costs are paid out of the Claimant's damages?
  • Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (the Protocol)
  • CPR 45 (fixed costs)
  • Stage 3 of the Protocol
  • Claim no longer continuing under the Protocol
  • CPR 36
  • Setoff of any unassessed costs liability
  • Qualified one-way costs shifting (QOCS)
  • We also refer you to the following Practice Notes which you may find useful:

For the purposes of this Q&A it is assumed that the claim remains under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (the Protocol).

Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (the Protocol)

The aims of the Protocol under para 3.1 is to ensure that:

‘(1) the defendant pays damages and costs using the process set out in the Protocol without the need for the claimant to start proceedings;

(2) damages are paid within a reasonable time; and

(3) the claimant's legal representative receives the fixed costs at each appropriate stage.’

The aims do not therefore include scenarios where a defendant may recover costs.

Para 7.44 of the Protocol provides that any offer to settle made at any stage by either party will automatically include and cannot exclude:

‘(1) the Stage 1 and Stage 2 fixed costs in rule 45.18;

(2) an agreement in principle to pay a sum equal to the Type C fixed costs of an additional advice on quantum of damages where such advice is justified under paragraph 7.10;

(3) an agreement in principle to pay relevant disbursements allowed in accordance with rule 45.19;

(3A) in a soft tissue injury claim, the cost of obtaining a medical report in rule 45.19(2A)(a); or

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