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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Broadhurst & Anor v Tan & Anor [2016] EWCA Civ 94 (23 February 2016) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2016/94.html Cite as: [2016] WLR 1928, [2016] EWCA Civ 94, [2017] RTR 1, [2016] CP Rep 22, [2016] WLR(D) 111, [2016] PIQR P12, [2017] 2 All ER 60, [2016] 1 WLR 1928, [2016] 2 Costs LO 155 |
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(2) A2/2016/0149 |
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 |
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B e f o r e :
LORD JUSTICE MCCOMBE
and
LORD JUSTICE DAVID RICHARDS
____________________
(1) BROADHURST (2) TAYLOR |
Appellant |
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– and – |
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(1) TAN (2) SMITH |
Respondent |
____________________
James Laughland (instructed by Horwich Farrelly Solicitors) for the Second Appellant & First Respondent
Hearing date: 08/02/2016
____________________
Crown Copyright ©
Master of the Rolls:
The Rules
"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…"
"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
"New rules 36.10A and 36.14A make provision in respect of the fixed costs a claimant may recover where the claimant either accepts or fails to beat a defendant's offer to settle made under part 36 of the CPR. Provision is also made with regard to defendants' costs in those circumstances. If a defendant refuses a claimant's offer to settle and the court subsequently awards the claimant damages which are greater than or equal to the sum they were prepared to accept in the settlement, the claimant will not be limited to receiving his fixed costs, but will be entitled to costs assessed on the indemnity basis in accordance with rule 36.14."
The defendants' case
"Thus I am driven to conclude that rule 36.14(3) must apply to a case where a claimant makes a Part 36 offer to settle in a case where Section IIIA of Part 45 applies, and where the judgment is at least as advantageous to the claimant as the proposals contained in the offer."
"I find these dilemmas, and the absence of any clear resolution to them, so extraordinary that I conclude it cannot have been the intention of Parliament to draw a distinction between the fixed costs specified by Table 6 and costs assessed on the indemnity basis. Had that been the intention, I would have expected some clear guidance of the sort provided by rule 36.21(4)."
"(3) Rule 36.14(3) does apply in a case to which section IIIA of Part 45 applies where a judgment against a defendant is at least as advantageous as the proposal contained in a claimant's Part 36 offer.
(4) However, in such a case there is no difference between profit costs assessed on the indemnity basis and the fixed costs provided in table 6B of rule 45.29C, subject always to rule 45.29J "
Discussion
"the claimant will not be limited to receiving his fixed costs, but will be entitled to costs assessed on the indemnity basis in accordance with rule 36.14."
Conclusion
Lord Justice McCombe:
Lord Justice David Richards: