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Costs Case Review: Stopping the merry-go-round

17 February 2021
In this article, Nicola Critchley reviews a recent case where a Costs Master held that a Part 36 offer cannot be made in relation to the costs of the detailed assessment proceedings. 

Best (Deceased) v Luton & Dunstable Hospital NHS Foundation Trust (SCC) 29/01/2021, 


Following the conclusion of the detailed assessment of the claimant’s costs, an issue arose as to whether or not the claimant could additionally claim the benefits of a successful Part 36 offer in relation to the costs of assessment, which the defendant had accepted out of time. The Costs Master held that a Part 36 offer cannot be made in relation to the costs of the detailed assessment proceedings.

Facts and findings

The claimant’s Part 36 offer in relation to the costs of assessment was made on 16 October 2020. The amount was £52,000. That was £6,119.80 less than the assessed figure, so the claimant had bettered her offer.

The question to be decided was whether the award and the quantification of the costs of assessment fell within “any issue that arises in” that independent claim for the purposes of CPR 36.2(3), so that the claimant was entitled to the additional benefits provided by Part 36. The Master held that it did not. 

The issues in the detailed assessment were set out in the bill of costs, points of dispute and replies. They were resolved on the defendant’s acceptance of the Part 36 offer. The award and quantification of the costs of assessment followed, but they were not issues in the deemed independent claim, all of which had already been resolved. The costs of detailed assessment proceedings did not carry their own costs and did not meet that criterion.


As the Master observed, if the claimant had been right then any Part 36 offer made as to the costs of assessment would, on acceptance, result in a further deemed order for costs under CPR 44.9(1)(b). The receiving party would, accordingly, be entitled to draw up another bill to cover its costs of working on the costs of the detailed assessment, and to start a new set of proceedings for the detailed assessment of those costs. In theory, this could result in an endless merry-go-round, with another bill claiming “the costs of the costs of the costs”.

For further information please contact Nicola Critchley.

Further Reading

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