Attersley v UK Insurance [2026] EWCA Civ 217: Part 36 and Fixed Costs

Fixed Costs — 2026-03-04

Attersley v UK Insurance [2026] EWCA Civ 217 summary: Part 36 offers made before multi-track allocation stay in fixed costs under rule 36.20, not rule 36.13.

Overview

Date: 4 March 2026

Court: Court of Appeal (Civil Division)

Judges: Lord Justice Lewison, Lady Justice Falk, Lord Justice Miles

Citation: [2026] EWCA Civ 217

Key Issue: Whether multi-track allocation retrospectively disapplies fixed recoverable costs where a Part 36 offer was made and its relevant period expired before allocation

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The Facts

Laura Attersley was involved in a road traffic accident on 9 March 2018. Her claim was originally started under the RTA Protocol with a value stated as up to £10,000.

The claim exited the Protocol when the defendant disputed liability. Liability was later admitted in April 2019.

In February 2021, shortly before limitation expired, a Part 7 claim form was issued. The claim had grown significantly — the Claimant now sought up to £150,000 in damages with ongoing physical and psychological issues, supported by three medical reports.

A defence was filed on 4 March 2021, and on the same day the Defendant made a Part 36 offer of £45,000. The Claimant did not accept within the 21-day relevant period.

At a CMC on 5 January 2022, the case was allocated to the multi-track. The parties agreed the case was suitable for multi-track given the quantum, expert evidence (six claimant experts, four defendant experts), and a five-day trial estimate. A costs management order was made.

On 8 July 2022, the Claimant accepted the Part 36 offer — some 16 months after the relevant period had expired and after the case had been allocated to the multi-track.

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The Issue

It was common ground that if the Claimant had accepted within the relevant period (by 25 March 2021), she would only have been entitled to fixed costs under Section IIIA of Part 45.

The question was: given that the case had since been allocated to the multi-track, was she now entitled to standard basis costs under rule 36.13, or was she restricted to fixed costs under rule 36.20?

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The Decisions Below

HHJ Duddridge held the Claimant was restricted to fixed costs. He concluded that rule 36.20 governed the position, and that the Defendant's construction reflected the broad intention of Part 36 — that claimants who accept offers by the end of the relevant period are entitled to costs on the basis of the regime applicable at that date. It would be arbitrary if later allocation changed the costs consequences.

Stacey J allowed the Claimant's appeal. She considered that the decision in Qader v Esure Services Ltd [2016] EWCA Civ 1109 established that fixed costs rules in Section IIIA of Part 45 ceased to apply altogether once a case was allocated to the multi-track. She therefore held that rule 36.13 (standard costs) applied, not rule 36.20 (fixed costs).

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The Court of Appeal's Decision

The Court of Appeal allowed the Defendant's appeal and restored HHJ Duddridge's order.

Lord Justice Miles, delivering the lead judgment, held that rule 36.20 governs the costs consequences, not rule 36.13.

The Key Reasoning

1. Rule 36.20 applies to ex-Protocol claims

Rule 36.13(1) is expressly subject to rule 36.20. Where rule 36.20 applies, rule 36.13 does not. The present case fell squarely within rule 36.20(1) — it was a claim that no longer continued under the RTA Protocol pursuant to rule 45.29A(1). That was common ground.

2. Allocation does not have retrospective effect for all purposes

The Claimant's case rested on Qader, which held that the words "and for so long as the case is not allocated to the multi-track" should be read into rule 45.29B. The Claimant argued this meant that upon multi-track allocation, Part 45 Section IIIA was completely disapplied with retrospective effect.

The Court rejected this. Miles LJ held at paragraph 58:

> "I do not think that Qader establishes such a broad proposition. In that case the question was whether a claim which had been allocated to the multi-track should be subject to fixed costs or should be subject to costs management. The court was concerned only with the code contained in Part 45 and did not have to consider its interplay with other rules."

The words "for so long as" in rule 45.29B have a temporal element — they operate prospectively, not retrospectively.

3. The relevant date is when the Part 36 relevant period expired

Rule 36.20(4) expressly applies where a Part 36 offer is accepted after the relevant period. The claimant is entitled to the fixed costs applicable at the date on which the relevant period expired. At that date (25 March 2021), the case was firmly within the fixed costs regime — allocation to the multi-track did not happen until January 2022.

4. Policy supports this interpretation

Part 36 operates by placing the costs risk on the claimant to encourage early settlement. It would be "surprising" (paragraph 63) if a claimant became entitled to substantially greater costs simply by accepting an offer late, by reason of events occurring after the relevant period and outside the parties' control.

As Miles LJ observed at paragraph 64:

> "It would be surprising if a claimant were to become entitled to a greater amount of costs by reason of accepting an offer after the expiry of the relevant period by reason of an allocation of the case to the multi-track in the meantime."

5. Specific rule prevails over general

Even if there were a conflict between rules 36.20 and 45.29B, the more specific rule (36.20, which deals expressly with Part 36 acceptance in ex-Protocol cases) must prevail over the more general rule (45.29B): see Solomon v Cromwell Group Plc [2011] EWCA Civ 1584.

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Unresolved Questions

The Court deliberately left open several scenarios (paragraphs 72–75):

Where a Part 36 offer is made after allocation to the multi-track
Where the offer is made pre-allocation but the relevant period expires after allocation
How the post-October 2023 amended rules affect the position

Miles LJ suggested the Rules Committee may wish to consider these scenarios, noting that "the existing rules do not yield entirely straightforward answers and they would benefit from clarification."

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Key Takeaways

1. Fixed costs are anchored to the relevant period, not the date of acceptance. Where a Part 36 offer's relevant period expires while the fixed costs regime still applies, the claimant receives fixed costs — even if the case is subsequently allocated to the multi-track.

2. Qader does not have unlimited retrospective reach. The insertion of "for so long as the case is not allocated to the multi-track" into rule 45.29B operates prospectively. It does not rewrite history to treat the case as if it had never been within Section IIIA.

3. Defendants can "lock in" fixed costs liability by making Part 36 offers early, before allocation. If the relevant period expires while fixed costs still apply, late acceptance will not upgrade the claimant's costs entitlement.

4. Claimants should think carefully about rejecting early Part 36 offers in ex-Protocol cases that may later be allocated to the multi-track. Delaying acceptance will not improve the costs position.

5. Uncertainty remains for offers made after allocation or straddling the allocation date. Practitioners should watch for Rules Committee guidance.

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Citation: Attersley v UK Insurance Limited [2026] EWCA Civ 217

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