A party can seek indemnity costs in one of two ways: either because there is a presumption that such costs will apply (for example, under CPR 36.14) or because it can demonstrate the necessary evidence of misconduct, pursuant to CPR 44.3. In Fitzpatrick Contractors Limited v Tyco Fire and Integrated Solutions (UK) Limited [2009] EWHC 274 (TCC), the court had to decide whether to order indemnity costs to Fitzpatrick as a result of Tyco’s late acceptance of a Part 36 offer. The court noted that accepting a Part 36 offer outside the 21-day period is something a party is permitted to do by the CPR, so it would be a ‘curious result’ if Tyco had to pay indemnity costs as a consequence (whether automatic or not) of something permitted by the rules. Offerees should be encouraged to keep offers under constant review, and awarding indemnity costs following late acceptance, where late acceptance was itself permitted by the CPR, might force a party who wanted to settle late in the day to instead press on to trial in the hope of beating an offer that he belatedly realised to have been well-judged. Although this was a complex case, the parties’ approach to it had generally been reasonable and a settlement three months before trial, at a figure that represented about half of the claimant’s original claim, was an unexceptional result. To read the judgment click here.