I had my first Stage 3 hearing where the Judge awarded damages which did not beat the Defendant’s Part B offer.
It was an infant case and the Part A offers were only £600 apart but the Defendant was gunning for £2,500 and I was asking for £5,000. The Defendant’s submission was entirely plausible but the Judge was with me in respect of the Claimant’s injury being more substantial. The Judge, however, decided on a figure that was £150 short.
The Claiman was a child. He had an advantage compared with adult Claimants. The Claimant was entitled to entire Stage costs in any event. It would be the same if he accepted the Part B at Stage 2 or did not. Consequently, the only real issue would be the Defendant’s costs (and any disbursements that the Defendant wanted to raise irrespective).
Those instructing relied on counsel’s advice to proceed to Stage 3 and may feel aggrieved that they’ve ended up £150 worse off in damages and at least £600 in costs.
It’s always a risk in litigation and in certain circumstances it would be a 50/50 risk to reject an offer. It can be unfair when medical evidence is incomplete.
There are, however, differences between Part 36 consequences for offers made during Part 7 proceedings (ex portal) and in Part 8 (portal).
Part 36 consequences are compulsory in Part 8, not in Part 7 (if it’s unjust to do so)
There is scope for a court to deviate from imposing the Part 36 consequences, but only if it is ‘unjust to do so’. This gives, at the very least, the opportunity for a party to argue that consequences of Part 36 should not apply.
In a portal claim, it does not matter what the circumstances are:-
CPR 36.29
(2) Where paragraph (1)(a) applies, the court must order the claimant to pay—
Or
(4) Where paragraph (1)(c) applies, the court must order the defendant to pay—
There is simply no juridiction to prevent the consequences from applying. So even if those instructing me wanted to argue it was unjust for consequences to follow when an infant Claimant reasonably followed Counsel’s advice, it would be futile because it CPR 36.29(2)
The financial consequences are different
What’s the consequences for a Claimant if they fail to be the Defendant’s Part B offer? £600 plus interest from the first business day after the Court Proceedings Pack was served on the Defendant. Very easy to quantify.
What about the consequences for the Defendant? The Claimant receives another 10% of their damages. They also get interest on their damages. It is limited to the period between the service of the Court Proceedings Pack and the hearing. The Part 36 costs are still fixed costs and the interest is only based on the outstanding costs (usually £600).
In Part 7 proceedings a Part 36 offer will apply from the end of the Part 36 relevant period and costs are assessed on an indemnity basis. The Claimant will get an additional 10% uplift on their damages.
The period of interest could be significant compared with Part 8 claims.
The same could be the said for the Part 36 consequences in favour of the Defendants in Part 7 claims. It is why Stage 3 hearings happen. The cost consequences themselves are modest in comparison with Part 36 offers in Part 7.
Only Protocol Offers (i.e. Part B) has Part 36 consequences
In Part 7 proceedings, you can receive a Part 36 offer at any time once the matter is out of the protocol and up to trial. One only has to ensure it complies with CPR 36 (or use a N242A) to create the offer.
In the portal, the only offer that amounts to a Part 36 offer within the meaning is the one contained in Part B of the Court Proceedings Pack. It does not matter about any subsequent offers made after the end of the Consideration Period. The only figure that matters is the one in Part B.
You also are unlikely to make a faux pas with Part B offers in Part 8 (unless you calculate it wrong and put the wrong figure in). You can see many a case about defective Part 36 offers, which still can be accepted – but do not have the Part 36 consequences. One should always use an N242A. They are not utilised like they should.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.