This case was commenced under the Part 8 procedure. The issue before the court was whether the claimants where entitled to their costs after acceptance of a pre-action offer made by the defendant.
The background to the case is that the claimants sent a letter before claim to their mother’s GP who took 14 months to respond but in any event denied breach. An offer was made pursuant to CPR 36 by the defendant to the claimants.
The offer was open for acceptance until 18 June 2010 and was accepted late on 21 October 2010 this was due to the claimants’ solicitors not being in a position to advise on quantum until they had seen and reviewed the evidence.
Legal issues: does CPR 36.10 apply?
The dispute arose in that the defendant wanted her costs paid from 18 June 2010 due to acceptance being out of time. It was argued that it was for the court to decide whether the claimants could accept the offer out of time. In short the issue was whether “proceedings” under CPR 36.10 included acceptance before proceedings had been started and if yes whether the discretion as set out in CPR 36.10(5) should be applied in favour of the claimants.
The court accepted that a “pre-issue Part 36 should be treated no differently from a post issue Part 36 offer so far as operation of the provisions of Part 36 is concerned.”
The court placed emphasis on the fact that CPR 36.10 is headed “Costs consequences of acceptance of a CPR 36 offer” and that CPR 36.14 is headed “Costs consequences following judgment” together with the fact that there was no intervening rule that was headed “Costs consequences following the issue of proceedings.” The court found that “proceedings” in CPR 36.10 “is not confined in application to post-issue proceedings.” Therefore, the court found, that “proceedings” carries a different meaning to that given under CPR 36.3 where it refers to post-issue proceedings. The court concluded: “It follows that I consider that the court may consider the provisions of Part 36.10 when considering what order for costs should be made.”
The court concluded that discretion should be exercised so as to order that the claimants’ reasonable costs be paid up to and including approval of acceptance of the Part 36 offer.