Part 36 - Court awards indemnity costs after Part 36 offer accepted out of time

Article

08 February, 2017

The Law Gazette has reported that Stoke County Court awarded indemnity costs against a defendant in the matter of Car Craft Test Centre and Martin v Trotman & Advantage Insurance Company. The Defendant accepted a Claimant's Part 36 offer 10 months out of time, but before trial, under the RTA protocol. Indemnity costs were awarded by the Court from the date that the Part 36 offer had expired.

The Claimant had made its Part 36 offer after disclosure of medical evidence, and before proceedings were commenced. DJ Etherington considered that it would not be 'unjust' to make an award of indemnity costs, having considered the factors listed under CPR 36.17 (5).

Forbes comment

This decision reiterates the importance of Part 36 offers. Part 36 offers are an extremely useful tool for Claimants and Defendant's should ignore reasonable Part 36 offers at their peril.

Following this decision and the earlier decision of Sutherland v Khan (unreported) 2016, Defendants are likely to see an increase in applications for indemnity costs. However, it should be noted that Claimants do not have an automatic entitlement to seek indemnity costs. When considering whether to award indemnity costs, the Judge must to take into account all the circumstances of the case, including the matters listed in CPR 36.17(5).

For further advice please contact Sarah Wilkinson by email or on 01254 222399.

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