Attersley v UK Insurance Ltd [2026] EWCA Civ 217

Andrew Roy KC (instructed by Paul Wainwright and Lindsey Bartling of Clyde & Co LLP) appeared for the Defendant in this second appeal on an issue of major significance.

The issue was whether costs on late acceptance of a Part 36 offer in a personal injury claim which had exited the RTA Portal and had been allocated to the multi-track were fixed.

This is an issue with far-ranging consequences across all types of civil claims.  In 2023 the fixed costs regime was massively expanded both vertically (to claims of a value up to £100,000) and horizontally (to encompass nearly all claims).  Previously it had been limited to certain categories of claims valued up to £25,000.  The applicable rules under the new regime are materially the same as under the old.  Late acceptance is a common scenario, and in any event the same principles govern failure to beat a defendant’s offer at trial.  The principle here is therefore potentially engaged in respect of any Defendant’s Part 36 offer in a fixed costs case.  Cost disputes in numerous similar cases had been stayed pending the outcome of this appeal.

In Attersley the claim started within but then swiftly exited the RTA Protocol.  The Defendant made a Part 36 offer for £45,000 post-issue but pre-allocation (albeit when it was clear that the claim would have been allocated to the multi-track).

If the Claimant had accepted the offer in time she would have been limited to fixed costs.  She in fact accepted 16 months late, after allocation to the multi-track.  She then argued that the multi-track allocation displaced fixed costs.  The Defendant argued that it was plainly wrong for the Claimant to receive higher conventionally assessed costs as a reward for late acceptance.

The dispute centred on an apparent tension between two rules (1) rule 36.20 (now rule 36.23), which provides that in an ex-Protocol case, if an offer is accepted out of time a Claimant gets the fixed costs they would have got had it been accepted in time; and (2) rule 45.29B (now rule 45.50) which provides that FRC do not apply to claims allocated to the multi-track.

HHJ Dudderidge at first instance found for the Defendant.  Stacey J on appeal (sitting with Costs Judge Brown as an assessor) found for the Claimant.

The Court of Appeal found for the Defendant, holding that on a proper interpretation of the rules the Claimant was limited to fixed costs.

Miles LJ, with whom Lewison and Falk LJJ agreed, gave the lead judgment.  He held that as a matter of interpretation fixed costs applied.  His principal reasons were as follows:

  • Rule 36.13(1) expressly states that it is subject to rule 36.20. Therefore where rule 36.20 applies, rule 36.13 does not.
  • Rule 36.20 is headed “Costs consequences of acceptance of a Part 36 offer where Section IIIA of Part 45 applies”. Rule 36.20(1) expressly applies “where (a) a claim no longer continues under the RTA or EL/PL Protocol pursuant to rule 45.29A(1)”.
  • The scope of Section IIIA of Part 45 is in turn defined in rule 29A, namely (so far as material here) it applies to a claim started under the RTA Protocol or the EL/PL Protocol “where such a claim no longer continues under the relevant Protocol”. It therefore applied to this claim.
  • Under these provisions the case would fall within the scope of rule 36.20.
  • Stacey J erred in holding that the effect of rule 29B was to displace these provisions. Qader v Esure Services Ltd [2016] EWCA Civ 1109; [2017] C.P. Rep. 10 did not support the broad proposition that allocation to the multi-track displaced fixed costs.  Ho v Adelekun (No. 1) [2019] EWCA 1988; [2019] Costs LR 1963 was authority to the contrary.  There was no discussion of Part 36 in Qader.
  • This conclusion accorded with the policy considerations underpinning both the fixed costs regime and Part 36.
  • The Defendant’s interpretation generated more rational and coherent outcomes. Had the Claimant accepted the offer within the relevant period she would have been limited to fixed costs. It would be surprising if she were to become entitled to substantially higher costs by reason of events occurring after that period expired.  This would be inconsistent with the purpose of encouraging earlier settlement.
  • There was no conflict between rule 36.20 and rule 29B. However, if there was, the former as the specific rule prevailed over the latter more general one; Solomon v Cromwell Group [2011] EWCA Civ 1584, [2012] 1 WLR 1048.

The Defendant’s alternative ground, that fixed costs should apply indirectly by reference to Williams v Secretary of State for Business, Energy & Industrial Strategy [2018] EWCA Civ 852; [2018] 4 W.L.R. 147, therefore did not arise.

The Court of Appeal also identified that it was unclear what the result should be if the Claimant accepted a Part 36 offer which was made or expired following allocation to the multi-track.  On a plain reading of the rules the Claimant would be limited to FC.  However, that might appear to be a surprising and unfair result.

The Court suggested that the Rules Committee should look at this gap in the rules.  Unless and until it does so, there remains scope for dispute.

Click here for the full judgment.