A ‘fix’ to the lacuna in fixed costs? Attersley v UK Insurance Ltd [2026] EWCA Civ 217

Introduction

In the June 2025 edition of the ‘3+9 = Costs’ newsletter Daniel Kozelko reported on the recent judgment of Stacey J in Attersley in the High Court ([2025] EWHC 884 (KB)). There, Stacey J was faced with the question “will a claimant be entitled to fixed costs, or costs assessed on the standard basis, up to the point of the expiry of the relevant period of a Part 36 offer that she accepted late, where a claim began under the RTA Protocol but exited and became a Part 7 claim?”. Stacey J answered the question by holding that fixed costs would not apply. Now, the Court of Appeal (Miles, Lewison, Falk LJJ) has disagreed and overturned this: fixed costs will continue to apply in such circumstances.

Background

It will help to repeat the background. The claimant was involved in a road traffic accident with the defendant on 9 March 2018. She submitted a claim notification (an RTA1) under the RTA Protocol on 19 March 2018 (and thereby became subject to the fixed costs regime). At the defendant’s request, the claim exited the RTA Protocol on 9 April 2018 as there was a dispute as to liability. On 12 February 2021 the claimant issued Part 7 proceeding, and on 4 March 2021 a defence was filed admitting liability along with a Part 36 offer. That Part 36 offer was not accepted by the claimant within the relevant period (ending 25 March 2021). On 5 January 2022 the claim was allocated to the multi-track. Finally, on 8 July 2022, the claimant accepted the defendant’s Part 36 offer.

CPR Provisions

There was no doubt that, had the claimant accepted the Part 36 offer within the relevant period, fixed costs would have applied. The question, then, was what happens when the Part 36 offer is accepted late and, importantly, after the claim is allocated to the multi-track. Rule 45.29B at that time provided:

Subject to rules 45.29F, 45.29G, 45,29H and 45.29J, and for as long as the case is not allocated to the multi-track, if in a claim started under the RTA Protocol, the Claim Notification is submitted on or after 31^st July 2013, the only costs allowed are –

                The fixed costs in rule 45.29C

                Disbursements in accordance with rule 45.29I

The words ‘and for as long as the case is not allocated to the multi-track’ were added subsequent to the decision in Qader. The other key provision is r36.20 which at that time provided for a claim which ‘no longer continues under the RTA… Protocol pursuant to rule 45.29(1)’:

(2) Where a Part 36 offer is accepted within the relevant period, the claimant is entitled to the fixed costs in Table 6B, Table 6C or Table 6D in Section IIIA of Part 45 for the stage applicable at the date on which notice of acceptance was served on the offeror.

…

(4) [Subject to provisions not in issue], where a defendant’s Part 36 offer is accepted after the relevant period –

(a) the claimant will be entitled to the fixed costs in Table 6B, Table 6C or Table 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 for the period from the date of expiry of the relevant period to the date of acceptance.

The judgment below

In concluding that fixed costs would not apply, Stacey J was impressed upon by the earlier judgment of Briggs LJ in Qader v Esure [2016] EWCA Civ 1109 where he noted ‘fixed costs were not intended to apply where there had been a judicial determination that a claim issued in Pt 7 should be allocated to the multi-track’. The rationale is that the relevant Protocols and fixed costs regime were only suitable for smaller, less complicated claims. This did not describe a multi-track claim. Thus, upon a claim being allocated to the multi-track, it became apparent that the Qader reasoning no longer applied. Stacey J rejected the argument that this would lead to claimants gaming the system (by delaying acceptance), and fixing costs would result in claimants withholding their claims from issuance until the value was clear. That was not desirable. She concluded that fixing the costs was more unfair than the significant windfall of not fixing the costs in such circumstances.

The judgment

Males LJ rejected the conclusion reached by Stacey J. He considered critical the question to be when the relevant period for the offer expires, rather than when the offer was accepted. He considered this to be a straightforward reading of r36.20(4), which fixed in time the relevant costs regime by reference to the relevant period. Rule 45.29B did not require an approach which treated a claim, once allocated to the multi-track, as having never previously fallen within Section IIIA of Part 45. As to Qader, it was a case concerned purely with Part 45; it did not address the interplay with Part 36, nor retrospective effect of allocation for such purposes of offers. Rather, a more straightforward approach to reading the rule, and for understanding the words “and for so long as the claim is not allocated to the multi-track” should apply.

Males LJ considered this to fit with the reasoning in Qader, as it avoided the uncertainty of guessing whether a case would fall within the Part 45 regime. The approach here would avoid uncertainty of the consequences of the acceptance of an offer. There was no conflict between r36.20 nor 45.29B, but if there was the more specific rule in the former would overtake the general rule in the latter.

The court disagreed with the contrary view of Stacey J that fixing the costs was more unfair than the windfall for claimants. It was noted a surprising outcome that Part 36 would occasion a windfall on the claimant as a result of the defendant’s offer; the point of a defendant’s Part 36 offer was to put the claimant at risk. The approach accepted by Stacey J provided a positive reason to delay a decision and incur more costs, in circumstances where the relevant period was considered to be a reasonable period within which to accept an offer. As to the suggestion that a defendant could withdraw the offer; that was misplaced as withdrawal of such an offer would erode the protection intended by the scheme for the defendant.

Finally, the court noted that the Rules Committee may wish to consider the case where an offer is made in an ex-Protocol case where the offer is made (or the relevant period ends) after allocation to the multi-track. While noting the issue (and stating he would not express any concluded view), Males LJ did appear to suggest that in such circumstances the default rule in r36.13 would apply and costs would be recoverable on the standard basis.

Comment

This is an important clarification to the rules which appears to more reflect the spirit of a defendant’s Part 36 offer. It removes the incentive to delay decisions on offers, and minimises the reliance of proceedings on a contingent event in the future (allocation). While an issue only in only niche circumstances, it is helpful to have the purpose and scope of such fixed costs once again clarified.