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Fixed costs give part 36 a boost

Elaine Penrose and Giles Hutt discuss the implications of the Court of Appeal's decision in Broadhurst v Tan for CPR part 36 and fixed costs

8 March 2016

On 23 February 2015, the Court of Appeal handed down a judgment that, a couple of months earlier, would have seemed fairly routine. Its decision in Broadhurst v Tan [2016] EWCA Civ 94 clarified the interaction of Civil Procedure Rules (CPR) part 36 (governing formal offers to settle) and the regime of fixed costs that currently applies in many lower value personal injury cases (CPR part 45).

Specifically, the court ruled that when a party makes a successful 'claimant's offer' under part 36, it should generally receive its post-offer costs on the indemnity basis, together with its other standard rewards, regardless of whether the fixed costs regime is engaged (CPR 36.17(4)).

So far, so good: the court applied straightforward principles of interpretation and took into account the relevant explanatory memorandum. But, coming as it does only weeks after Lord Justice Jackson’s Inso...

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