Allocation to Multi-Track Automatically Disapplies Fixed Costs Regime, Enabling Standard Basis Cost Assessment for Part 36 Offer Acceptance

ATTERSLEY V UK INSURANCE LIMITED [2025] EWHC 884 (KB)

Attersley v UK Insurance Limited [2025] EWHC 884 (KB) addressed complex procedural issues regarding costs recovery in a multi-track personal injury claim originally commenced under the Road Traffic Accident Protocol. The High Court considered the interplay between CPR 45.29B and Part 36 costs provisions following a claimant’s late acceptance of a Part 36 offer. Mrs Justice Stacey allowed the claimant’s appeal, holding that upon allocation to the multi-track, the fixed costs regime is automatically disapplied retrospectively, entitling the claimant to standard basis costs up to the offer’s expiry date. The court rejected the defendant’s argument that Part 36.20 should prevail, finding that the Qader principle of excluding fixed costs for multi-track cases applied comprehensively. The judgment emphasised the legislative intention behind the fixed costs regime, which was not designed for complex, high-value claims, and provided a purposive interpretation avoiding potential absurd outcomes that might disincentivise claimants from using pre-action protocols. The case was remitted to the County Court for detailed costs assessment, with no specific guidance provided on assessment principles.

“Under the principles in 36.13, the claimant was therefore entitled to her costs to be assessed up to the end of the relevant period. CPR 36.20 did not therefore apply to this case at the moment when the Pt 36 offer was accepted.”

Citations

Qader v Esure Services Ltd [2016] EWCA Civ 1109 Fixed recoverable costs under Section IIIA of Part 45 do not apply to claims that have been allocated to the multi-track, whether or not they started under the RTA Protocol. Solomon v Cromwell Group plc [2011] EWCA Civ 1584 Where fixed and assessed costs regimes conflict, the specific provisions on fixed costs take precedence over the general rules for standard assessment, preserving the integrity of the fixed costs regime. Sharp v Leeds City Council [2017] EWCA Civ 33 Fixed costs apply to all interim applications within the scope of the Protocols unless expressly excluded, and the regime does not permit implied exceptions even where additional work is involved. Williams v Secretary of State for Business Energy and Industrial Strategy [2018] EWCA Civ 852 Where fixed costs do not apply directly, the court retains discretion under Part 44 to limit assessed costs to a level equivalent to fixed costs if a party has unreasonably failed to comply with a relevant Protocol. Broadhurst v Tan; Smith v Taylor [2016] EWCA Civ 94 Where a claimant beats their own Part 36 offer at trial in a fixed costs case, they are entitled to costs on the indemnity basis from the date of expiry of the relevant period, as Part 36 overrides fixed costs in this context. Hassam v Rabot [2024] UKSC 11 A purposive approach must be given to statutory interpretation, avoiding outcomes that are absurd, disproportionate, or inconsistent with the legislation’s intended purpose. R (on the application of Quintavalle) v Secretary of State for Health [2003] UKHL 13 Statutory provisions must be interpreted to give effect to Parliament’s purpose and not confined to a literal reading that may frustrate the legislative intent.

Track allocation housing disrepair CPR 46.13 settlement sum costs restriction SCCO

MRO fee markup cap 25% detailed assessment personal injury Senior Courts Costs Office

Security for costs refused CPR 25.27 very high probability success excessive estimate King's Bench

IPEC scale costs transfer Patents Court PD 30 para 9.2 costs caps Court of Appeal

Costs budget variation CPR 3.15A promptness significant development unfair prejudice Chancery Division

Costs budgeting inter partes proportionality high hourly rates AI disclosure Patents Court CPR 3E

Beneficiary personal liability section 71(3) Solicitors Act 1974 indemnity costs VAT self-supply SCCO

Summary assessment indemnity costs unless order payment on account disclosure default Chancery Division

Provisional assessment set aside CPR 3.1(7) points of dispute filing duty PD 47 para 14.3 SCCO

Fixed recoverable costs police claims CPR 26.9(10)(e) intentional tort exemption

Key Points

Where a case that commenced under a relevant Pre-Action Protocol has been allocated to the multi-track, Section IIIA of Part 45 (the fixed recoverable costs regime) ceases to apply prospectively and retrospectively by operation of CPR 45.29B. [67]
CPR 36.20 (which governs the costs consequences of acceptance of a Part 36 offer where Section IIIA applies) does not apply once a case is allocated to the multi-track, even if the relevant Part 36 offer was made or its relevant acceptance period expired before allocation. [81]
On allocation to the multi-track, all costs incurred are to be assessed on the standard basis under CPR Part 44, including those incurred prior to allocation, unless another regime expressly applies. [67]
The court will not imply an exception to CPR 45.29B or disapply the retrospective effect of multi-track allocation solely because the acceptance of a Part 36 offer occurred after the expiry of its relevant period. [67, 81]
The principle that specific provisions displace general ones in the CPR does not override the disapplication of fixed costs under CPR 45.29B; Parts 36 and 45 operate coherently when Part 36.20 ceases to apply on allocation to the multi-track. [80]

“It would perhaps have been clearer and avoided some of the argument if there was an express reference in CPR 36.20 that claims that come within 45.29B are excluded from 36.20 and fall back into the general rule in 36.13 and saved much of the argument in this case, but it is not fatal to the claimant’s argument.”

Key Findings In The Case

The claimant’s personal injury claim initially commenced in the RTA Protocol but exited on the defendant’s request when liability was disputed, and it was later pursued under Part 7 proceedings with a claimed value of up to £150,000 [1], [2], [15], [16].
The Part 36 offer of £45,000 was made by the defendant before the claim was allocated to the multi-track and expired without acceptance; the offer was accepted by the claimant over a year later, after the claim had been formally allocated to the multi-track [2], [17], [20].
At the case management conference on 5 January 2022, the claim was allocated to the multi-track due to its complexity and need for extensive expert evidence, and a five-day trial was listed—confirming the claim was wholly unsuitable for the fast track [19].
The claimant was entitled to recover her costs on the standard basis, assessed under Part 44, up to the expiry of the relevant period of the Part 36 offer, because fixed costs ceased to apply retrospectively from the point of multi-track allocation by operation of CPR 45.29B [67].
The defendant failed to withdraw its Part 36 offer prior to acceptance, and no grounds were established to justify depriving the claimant of standard basis costs or limiting recovery to the fixed recoverable costs regime, either directly or indirectly [60], [85].

"The intended purpose of the fixed costs regime in this context was that it should apply as widely as possible… but not to cases where there had been a judicial determination that they should continue in the multi-track. The intended restriction… is clear… to provide that, from the moment when a case was in fact allocated to the multi-track, the s.IIIA fixed costs regime should cease to apply to that case."

Background

On 11 April 2025, Mrs Justice Stacey delivered a judgment in the High Court of Justice, King’s Bench Division regarding an appeal in the case of Miss Laura Attersley v. UK Insurance Limited (2025 EWHC 884 (KB)). The appellant, Miss Laura Attersley, initially brought a claim for damages in the tort of negligence following a road traffic accident, and the respondent was UK Insurance Limited, the insurer of the other driver involved.

The claim began under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (RTA Protocol), but subsequently exited it at the defendant’s request. The claimant issued Part 7 proceedings claiming up to £150,000 damages and, later, accepted a Part 36 offer from the defendant for £45,000 after the claim had been allocated to the multi-track. The principal matter on appeal was the determination of whether the claimant was entitled to fixed costs or costs assessed on the standard basis up until the point of the expiry of the relevant period of the Part 36 offer accepted late.

The procedural history began on 9 March 2018 when the claimant was involved in a road traffic accident in Southend on Sea, Essex. Ten days later, on 19 March 2018, the claimant’s solicitors submitted a Claim Notification Form (RTA1) under the RTA Protocol. The defendant requested the claim exit the RTA Protocol on 9 April 2018 due to disputed liability. Subsequently, on 29 April 2019, liability was admitted by the defendant. On 12 February 2021, the claimant issued Part 7 proceedings with the particulars of claim dated 13 January 2021, escalating the damages claimed to up to £150,000 based on ongoing physical and psychological issues, supported by medical reports.

The claim was allocated to the multi-track on 5 January 2022, and the trial was scheduled, with extensive expert evidence anticipated. Nearly a year later, on 8 July 2022, the claimant accepted the defendant’s Part 36 offer of £45,000. A subsequent dispute arose regarding the costs consequences of this late acceptance, ultimately leading to the appeal heard on 14 October 2024.

Costs Issues Before the Court

The core issue before the High Court was the costs implications arising from the claimant’s late acceptance of the Part 36 offer. Specifically, the court needed to determine whether the claimant was entitled to her reasonable costs assessed on the standard basis up to the expiry of the Part 36 offer, or whether she was restricted to fixed costs up to that date, pursuant to CPR 36.20 as it was then in force.

Central to the issue was the interplay between CPR 45.29B, which pertains to fixed costs under Section IIIA of Part 45 for cases that have exited the RTA Protocol and not been allocated to the multi-track, and Part 36.20, which encompasses costs consequences of accepting a Part 36 offer for such cases. The contention primarily revolved around whether the rule amendments following Qader v Esure [2017] removed the application of the fixed costs regime upon allocation to the multi-track, thus entitling the claimant to costs assessed on the standard basis.

The Parties’ Positions

The claimant argued that, under CPR 45.29B, the fixed costs regime ceased to apply once the case was allocated to the multi-track, implying she was entitled to costs assessed on the standard basis as per CPR 36.13. Relying on Qader v Esure, she contended that the rule amendment intended to disapply fixed costs retrospectively upon multi-track allocation.

On the other hand, the defendant maintained that the claimant was only entitled to fixed costs until the Part 36 offer acceptance deadline per CPR 36.20. They argued that this interpretation was necessary to prevent an absurd outcome where claimants could benefit disproportionately from late offer acceptances and to uphold the overarching legislative intention to encourage early settlement and cost proportionality.

The Court’s Decision

Mrs Justice Stacey reviewed the statutory provisions and case law to ascertain the proper interpretation of the conflicting CPR rules. The judgment emphasised that the intention behind the CPR amendments following Qader was explicit in disapplying the fixed costs regime upon allocation to the multi-track. The court noted that this applied retrospectively, provided there had been a judicial determination for allocation to the multi-track.

Therefore, the court held that CPR 36.20 did not apply where a case had been allocated to the multi-track. Consequently, the claimant was entitled to her reasonable costs on the standard basis up to the expiry of the relevant period of the Part 36 offer, thereby overturning the lower court’s ruling that limited her to fixed costs.

The appeal was allowed, and the claimant’s costs up to the Part 36 offer expiry were to be assessed based on the standard basis under Part 44 principles. This outcome aligned with the statutory intention of CPR amendments and provided clarity on the costs implications in multi-track allocations.

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