Broadhurst and Another v Tan and Another

JurisdictionEngland & Wales
JudgeMaster of the Rolls,Lord Justice McCombe,Lord Justice David Richards
Judgment Date23 February 2016
Neutral Citation[2016] EWCA Civ 94
Docket NumberCase No: (1) A2/2016/0085 &
CourtCourt of Appeal (Civil Division)
Date23 February 2016
Between:
(1) Broadhurst
(2) Taylor
Appellant
and
(1) Tan
(2) Smith
Respondent

[2016] EWCA Civ 94

Before:

The Master of the Rolls

Lord Justice McCombe

and

Lord Justice David Richards

Case No: (1) A2/2016/0085 &

(2) A2/2016/0149

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

(1) SHEFFIELD COMBINED COURT CENTRE

HIS HONOUR JUDGE ROBINSON

A16YM728

(2) NEWCASTLE-UPON-TYNE COUNTY COURT

HIS HONOUR JUDGE FREEDMAN

A00YX710

Royal Courts of Justice

Strand, London, WC2A 2LL

Benjamin Williams QC (instructed by Winn Solicitors Ltd) for the First Appellant & Second Respondent

James Laughland (instructed by Horwich Farrelly Solicitors) for the Second Appellant & First Respondent

Hearing date: 08/02/2016

Master of the Rolls
1

These appeals are concerned with a point of construction which arises from the apparent tension between the rules fixing costs in most lower value personal injury cases (found in section IIIA of Part 45 of the CPR) and the provisions in Part 36 which specifically apply to such claims. The present case concerns the version of Part 36 which applied before 6 April 2015. Although the relevant rules have been renumbered and modified, the provisions applicable to this appeal remain substantially the same. Therefore, apart from numbering, the same issue arises under the current version of Part 36. I shall refer to the version of Part 36 which applied before 6 April 2015.

2

The issue concerns the interplay between the fixed costs prescribed by section IIIA of Part 45 (to which I shall refer as "section IIIA") and the provision in Part 36 for a claimant to recover assessed costs on the indemnity basis where she obtains a judgment against the defendant which is at least as advantageous to her as the proposals contained in her Part 36 offer. I shall refer to a claimant's Part 36 offer made in such circumstances as "a successful Part 36 offer".

3

The details of the facts in the two appeals are not material. It is sufficient to say that in both cases, the claimant (i) started a claim for damages for personal injuries arising from a road traffic accident under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents ("the RTA Protocol"); (ii) made a Part 36 offer to try to obtain settlement and the offer was rejected by the defendant; and (iii) obtained judgment which was more advantageous than the offer she had made.

4

In the case of Ms Broadhurst, HH Judge Robinson (sitting in the County Court at Sheffield) held that rule 36.14(3) applies in a section IIIA case where a claimant makes a successful Part 36 offer. But, he said, in such a case there is no difference between profit costs assessed on the indemnity basis and the fixed costs prescribed by Table 6 of rule 45.29C, subject to the possibility of awarding a greater sum than fixed costs in exceptional circumstances pursuant to rule 45.29J. Ms Broadhurst's case is that the judge was wrong to equate indemnity costs with fixed costs in this way.

5

In the case of Ms Smith, HH Judge Freedman (sitting in the County Court at Newcastle-upon Tyne) held, like Judge Robinson, that rule 36.14(3) applies in a section IIIA case where a claimant makes a successful Part 36 offer. But, unlike Judge Robinson, he did not equate indemnity costs with fixed costs.

The Rules

6

The fixed costs regime for low value personal injury cases was introduced on 31 July 2013 by the Civil Procedure (Amendment No 6) Rules 2013 ( SI 1695 of 2013) ("the 2013 Amendment Rules"). It introduced section IIIA, which was to apply to all claims which had started under the RTA or the EL/PL Pre-Action Protocols but were no longer continuing there.

7

Rule 45.29B provides that if, in a section IIIA claim started under the RTA Protocol, the Claim Notification Form is submitted on or after 31 July 2013, "the only costs allowed are—(a) the fixed costs in rule 45.29C; (b) disbursements in accordance with rule 45.29I". Rule 45.29C provides that the amount of fixed costs for cases in the RTA Protocol is set out in Table 6.

8

The 2013 Amendment Rules also introduced changes to Part 36 to take account of section IIIA. A new rule 36.10A legislated for the treatment of costs in section IIIA where a defendant's Part 36 offer was accepted by the claimant. The effect of this provision was that the claimaint would receive the fixed costs provided for by section IIIA. This disapplied the usual rule, contained in the pre-existing rule 36.10, that where a Part 36 offer is accepted, the claimant is entitled to costs assessed on the standard basis to the point of acceptance.

9

A new rule 36.14A was also introduced to prescribe the costs consequences following judgment in section IIIA cases. While it modified some aspects of rule 36.14 (which set out the cost consequences following judgment) in fixed costs cases, it left rule 36.14(3) unmodified. Rule 36.14 provided, so far as material:

" 36.14 – Costs consequences following judgment

(1) Subject to rule 36.14A, this rule applies where upon judgment being entered…

(b) judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant's part 36 offer.

(3) Subject to paragraph (6), where rule 36.14(1)(b) applies, the court will, unless it considers it unjust to do so, order that the claimant is entitled to –

(a) interest on the whole or part of any sum of money (excluding interest) awarded at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired;

(b) costs on the indemnity basis from the date on which the relevant period expired;

(c) interest on those costs at a rate not exceeding 10% above base rate and

(d) an additional amount, which shall not exceed £75,000, calculated by applying the prescribed percentage set out below…"

10

Rule 36.14A provided, so far as material:

" 36.14A – Costs consequences following judgment where Section IIIA of Part 45 applies

(1) Where a claim no longer continues under the RTA or EL/PL Protocol pursuant to rule 45.29A(1), rule 36.14 applies with the following modifications.

(2) Subject to paragraphs (3),(3A) and (3B) where an order for costs is made pursuant to rule 36.14(2)—

(a) the claimant will be entitled to the fixed costs in Table 6B, 6C or 6D in section IIIA of Part 45 for the stage applicable at the date on which the relevant period expired; and

(b) the claimant will be liable for the defendant's costs from the date on which the relevant period expired to the date of the judgment.

(3) Subject to paragraphs (3A) and (3B) where the claimant fails to obtain a judgment more advantageous than the defendant's Protocol offer —

(a) the claimant will be entitled to the applicable Stage 1 and Stage 2 fixed costs in Table 6 or Table 6A in Section III of Part 45; and

(b) the claimant will be liable for the defendant's costs from the date on which the Protocol offer is deemed to be made to the date of judgment; and

(6) Fixed costs shall be calculated by reference to the amount which is awarded.

(7) Where the court makes an order for costs in favour of the defendant –

(a) the court will have regard to; and

(b) the amount of costs ordered shall not exceed,

the fixed costs in Table 6B, 6C or 6D in Section IIIA of Part 45 applicable at the date of judgment, less the fixed costs to which the claimant is entitled under paragraph ( 2) or (3).

(8) The parties are entitled to disbursements allowed in accordance with rule 45.29I incurred in any period for which costs are payable to them."

The claimants' case

11

The following is a summary of the submissions of Mr Benjamin Williams QC. The starting point is that "fixed costs" and "assessed costs" are conceptually distinct. There is a tension between rule 45.29B and rule 36.14A. The former says that the only costs to be awarded in section IIIA cases are fixed costs; whereas the latter says that, in such cases, rule 36.14 will apply subject only to the modifications stated in rule 36.14A and following, and none of those modifications affects rule 36.14(3). The rule that claimants are entitled to an indemnity basis assessment of their costs where they have made a successful Part 36 offer is thereby preserved.

12

The tension between rule 45.29B and rule 36.14A is resolved by the principle that the general provisions yield to specific provisions: see Solomon v Cromwell Group [2012] 1 WLR 1048 at para 21. Rule 45.29B contains the general rule which applies to all section IIIA cases. But rule 36.14A contains the specific rule, which prescribes the costs consequences following judgment where section IIIA of Part 45 applies. Rule 36.14A(1) expressly states that rule 36.14 will apply to section IIIA cases as a whole and makes no modification of rule 36.14(3), with its provision for an indemnity basis assessment of costs where a claimant makes a successful Part 36 offer in such cases. Furthermore, rule 36.1 is a self-contained procedural code: this indicates that Part 36.14A is intended to prevail over rule 45.29B which is a rule of a more general nature.

13

This interpretation is consistent with the wider scheme of Part 36, as amended by the 2013 Amendment Rules. Where fixed costs are intended to prevail, Part 36 says so. First, rule 36.10A is introduced to disapply the right to costs assessed on the standard basis which would otherwise arise where a Part 36 offer is accepted by a claimant in a fixed costs case. Secondly, rule 36.14A makes specific provision for fixed, rather than assessed, costs in situations other than those where a claimant makes a successful Part 36 offer. Thus, if a defendant's offer is successful, rule...

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8 cases
  • Qader and Others v Esure Services Ltd The Personal Injury Bar Association and Another (Interveners)
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    • Court of Appeal (Civil Division)
    • 16 Noviembre 2016
    ...to me that the former are scale costs and the latter are capped costs, rather than fixed costs. 41 This is not, therefore, a case like Broadhurst v Tan [2016] 1 WLR 1928 where this court had to resolve an apparent conflict between the applicability of Part 45 fixed costs and the availabilit......
  • Miss Mercel Hislop v Miss Laura Perde
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 23 Julio 2018
    ...claimant recovers more than a Part 36 offer, he or she is entitled to indemnity costs from the date that the offer became effective: see Broadhurst v Tan [2016] EWCA Civ 94; [2016] 1 WLR 1928. That leaves what might be called the cases in the middle, where a defendant accepts the claimant'......
  • Allan John Doyle v M&D Foundations & Building Services Ltd
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 8 Julio 2022
    ...be read as anything more than an offer to pay costs on the usual basis, namely, fixed costs under Part 45. 35 In Broadhurst v Tan [2016] EWCA Civ 94, [2016] 1 WLR 1928 this Court determined that, where a claimant in an ex-Protocol case obtained judgment at least as advantageous as a Part ......
  • Global Assets Advisory Services Ltd and Another v Grandlane Developments Ltd and Others
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    • Court of Appeal (Civil Division)
    • 23 Octubre 2019
    ...which must be resolved. In this regard, Mr Cohen referred us to Lowin v W Portsmouth & Co Ltd [2017] EWCA Civ 2172; [2018] 1 WLR 1890, Broadhurst v Tan [2016] 1 WLR 1928, Solomon v Cromwell Group plc [2012] 1 WRL 1048; [2011] EWCA Civ 1584 and Hislop v Perde [2019] 1 WLR 201. In each o......
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1 firm's commentaries
  • Fixed Costs Apply To Late Acceptance Of Part 36 Offers
    • United Kingdom
    • Mondaq UK
    • 3 Agosto 2018
    ...contrast, where a claimant beats their own Part 36 offer after trial, costs on an indemnity basis will be applicable (Broadhurst v Tan [2016] EWCA Civ 94). Claimants will not be able to rely solely on the point of late acceptance as justification for departing from the fixed costs regime (u......

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