http://www.bailii.org/ew/cases/EWCA/Civ/2016/94.html

Winn solicitors for first appellant, Horwich Farrelly for second appellant

These conjoined appeals concerned claimants who had obtained more advantageous judgments than their earlier Part 36 offers. Both claims fell under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents. Rule 45.29B provides that, for a claim started under this Protocol on or after 31 July 2013, "the only costs allowed" are the fixed costs set out in the rules. First instance judges have differed as to whether that means that the indemnity costs to which the claimant is entitled under Part 36 are restricted to the fixed costs prescribed by the Protocol.

The Court of Appeal has now held that Part 36 overrides Rule 45.29B and, accordingly, the claimants are entitled to costs assessed on the indemnity basis from the date when the offer became effective. Clearly this leads to a more generous outcome for claimants who beat their Part 36 offers, but the Court of Appeal did not find this outcome would be so surprising or unfair as to justify a different conclusion: "a generous outcome in such circumstances is consistent with rule 36.14(3) as a whole and its policy of providing claimants with generous incentives to make offers, and defendants with countervailing incentives to accept them".