The Claimant in a large personal injury action made an application to accept a Part 36 Offer ‘out of time’ and the Court considered the test to be adopted under CPR 36.10(5) for exercising its discretion not to make the usual costs order in such circumstances. The Court held that the test to be adopted under CPR 36.10(5) was similar to that in CPR 36.14(2) on the cost consequences after judgment. The test was whether the usual costs order under CPR 36.10(5) should be departed from because it was unjust for the Claimant to pay the Defendant’s costs after the time for acceptance of an offer had expired. The Court had to consider the particular circumstances – departure would be the exception not the rule, Kunaka v. Barclays Bank PLC (2010) EWCA Civ. 1035 and Matthews v. Metal Improvements Co. Inc.  EWCA Civ. 215 considered. The circumstances set out in CPR 36.14(4) (costs after judgment) were also likely to be relevant under CPR 36.10. On the facts, the Claimant had shown insufficient grounds for departing from the usual costs order: Lumb v. Hampsey QBD (Lang J) 11.10.11 extempore judgment reported on Lawtel.
Nicholas Yell represented the Claimant and was instructed by Smith Jones.