HHJ Main QC, Manchester CC, 28.04.17

 

In this case, the claim had started in the MOJ Portal but then left. Proceedings were settled by way of Part 36. The Defendant argued that the claim had unreasonably left the Portal and that the Claimant should be restricted to no more than Portal costs, per CPR 45.24. However, the court found there was no discretion to award Portal costs where there had been acceptance of a Part 36 offer.

 

 

It seems unlikely that the Rules Committee intended that where a claimant has acted unreasonably in leaving the Portal, they could evade the costs consequences of their unreasonable behaviour simply by making a Part 36 offer. This is particularly so when one considers the parties could not make costs bearing Part 36 offers whilst a claim is in the portal (CPR 36.24(4), and the clear indication given in 45.29A(4).

 

It also appears that the court was not referred to the binding CA case of Solomon v Cromwell which decided that Part 36 offers do not preclude awarding fixed costs. It appears this is another badly drafted rule. It is also inconsistent with the case of Ansell & Evans v AT&T.  Readers are reminded of the principle in Patel v Secretary of State for the Home Dept [2013] UKSC 72 at [59] where the court found that as a matter of general principle, thus:

• Where there are conflicting decisions from judges of co-ordinate jurisdiction, then, in the absence of cogent reasons to the contrary, the second of those decisions should be followed.

As Ansell is the later decision, this should therefore, be preferred over Cookson v Manchester City Council.