Costs recoverability following split-liability Part 36 offers (Smithstone v Tranmoor Primary School)
Dispute Resolution analysis: In this case, the Court of Appeal gave guidance on what constituted a ‘judgment’ for the purpose of CPR 36.17(1). Further, the court held that split-liability Part 36 offers can engage the costs recoverability provisions set out in CPR 36.17(4), thereby effectively overruling the arguments which culminated in the decision in Mundy v TUI UK Ltd. However, this was not the end of the matter. Dismissing the appeal, the Court of Appeal held that on the facts of this case, the outcome was less advantageous than the proposals contained in the claimant’s Part 36 offer. Further, the court held that there was no reason to depart from the fixed costs regime, and that it would not be ‘unjust’ to confine the claimant’s solicitors to fixed costs recoverability. Now that the uncertainty which followed Mundy has been clarified by the court, this could mark a resurgence in parties making split-liability Part 36 offers. Written by Charlotte Payne, barrister at 7KBW.