The claimant brought a claim against the defendant for damages arising from professional negligence. The defendant made a Part 36 offer, the claimant accepted under CPR r 36.13. The parties executed a settlement agreement containing provisions that the defendant pay a sum on account of the costs incurred by the claimant, but which made no specific reference to an interim payment on account of costs. A costs order was deemed to have been made on the standard basis under rule 44.9(1). The claimant applied for an order under rule 44.2(8), by which the court, having ordered a party to pay costs subject to detailed assessment, was generally required to order the payment of a reasonable sum on account of costs. The district judge refused the application.
On the appeal—
Held, appeal dismissed. Since the consequences of acceptance of an offer were spelled out in Part 36, they had the effect that the majority of rule 44.2 could not be applicable to the situation. The point of r 44.9 in the context was to deem a costs order to be made so that the detailed assessment provisions could be triggered. The purpose of the deeming provision could not be said to have engaged any other parts of rule 44.2. Accordingly, there was no reason to read rule 44.2(8) to make a payment on account applicable when a Part 36 offer had been accepted (paras 29–30, 31, 32, 34).
Portia O’Connor (instructed by Pegasus ldp, Malvern) for the claimant.
Rupert Cohen (instructed by Freeths llp) for the defendant.