The correct outcome if a Claimant has beaten a Part 36 offer in a Fixed Recoverable Costs personal injury case

Part 36 consequences for beating a Part 36 offer in fixed recoverable costs will change after the expansion of the regime. Now a successful party who beats a Part 36 offer will now get an uplift on fixed costs.

Currently a Judgment that beats a Claimant’s Part 36 offer will attract the same cost consequences as a case subject to standard costs. However fixed costs still apply.

This post sets out in clear terms how Part 36 benefits will apply in a fixed recoverable cost case.

Broadhurst v Tan – indemnity costs confirmed

The case that paved the way for Claimants to get appropriate benefits for Part 36 was Broadhurst v Tan [2016] EWCA Civ 94. The Court of Appeal, at paragraph 31 of their Judgment said the following:-

As we have seen, Judge Robinson considered that Parliament could not have intended that a claimant should recover indemnity costs in a section IIIA case because of the practical difficulties that such an interpretation would entail. I accept that there are bound to be some difficulties of assessment where the costs are partly fixed and partly assessed. But I also accept the submission of Mr Williams and the written submissions of Mr McQuater on behalf of the Association of Personal Injury Lawyers that these were overstated by Judge Robinson. Where a claimant makes a successful Part 36 offer in a section IIIA case, he will be awarded fixed costs to the last staging point provided by rule 45.29C and Table 6B . He will then be awarded costs to be assessed on the indemnity basis in addition from the date that the offer became effective. This does not require any apportionment. It will, however, lead to a generous outcome for the claimant. I do not regard this outcome as so surprising or so unfair to the defendant that it requires the court to equate fixed costs with costs assessed on the indemnity basis. As Mr Williams says, a generous outcome in such circumstances is consistent with rule 36.14(3) as a whole and its policy of providing claimants with generous incentives to make offers, and defendants with countervailing incentives to accept them.

So this means:-

• Fixed costs up to the point the relevant period expired
• Part 36 benefits from there on, with costs assessed on the indemnity basis.

I will demonstrate the approach the Claimant would take if they had obtained £10,000 at trial which beat a Part 36 offer and the relevant period expired at the Pre-issue, pre-allocation stage for a RTA claim subject to fixed recoverable costs.

This is also based on the presumption the Court did not find it unjust to apply the consequences (which is different from Part 36 consequences for portal claims where no such term exists, Part 36 consequences must apply in portal claims).

The fixed recoverable costs

In accordance with Table 6B CPR 45.29C, the Claimant would have received £4,655 + VAT excluding the trial advocacy fee (£2,655 + 20% of the damages).

As the Claimant had beaten his Part 36 offer (which expired post-issue, pre-allocation) the Claimant’s fixed costs would have been £3,160 + VAT (£1,160 + 20% of damages).

This is £1,495 + VAT less than the fixed costs to trial. The remaining costs are dealt with by Part 36.

What are the correct Part 36 consequences following Judgment?

Part 36.17 sets out the consequences following Judgment and the correct set for a Claimant who has achieve a Judgment that is equal or greater than their Part 36 is CPR 36.17(4), which is:-

(a) interest on the whole or part of any sum of money (excluding interest) awarded, at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired;

(b) costs (including any recoverable pre-action costs) on the indemnity basis from the date on which the relevant period expired;

(c) interest on those costs at a rate not exceeding 10% above base rate; and

(d) provided that the case has been decided and there has not been a previous order under this sub-paragraph, an additional amount, which shall not exceed £75,000, calculated by applying the prescribed percentage set out below to an amount which is—

(i) the sum awarded to the claimant by the court; or

(ii) where there is no monetary award, the sum awarded to the claimant by the court in respect of costs—

Amount awarded by the court	Prescribed percentage
Up to £500,000	10% of the amount awarded
Above £500,000	10% of the first £500,000 and (subject to the limit of £75,000) 5% of any amount above that figure.

I shall start with the Claimant’s benefit regarding damages.

Claimant’s damages

The Claimant will receive an additional 10% on top of their £10,000, increasing their total damages post to £11,000. They will also receive interest on the £10,000 from the end of the relevant period up to trial.

The rate cannot exceed 10% above the base rate. It is for the Court to determine the rate.

Assessment of costs on the indemnity basis

The Court must assess the costs between the expiration of the relevant period of the Part 36 offer and the trial.

As the mater is in this example a fast track matter, the costs will usually be summarily assessed. An N260 must be filed setting out of the costs. The will usually incur a higher yield of costs because any doubt about whether costs were reasonable incurred will be assessed in the Claimant’s favour.

Interest on those costs

Interest is calculated in a similar manner as the interest on the damages but instead is calculated on the indemnity costs once assessed. The interest rate is usually going to be the same interest rate allowed for costs.

Outcome

The Claimant’s Part 36 consequence will look like this:-

• Damages
• 10% of those damages
• interest on the damages from the end of the relevant period until trial (rate to be determined by the Court not exceeding 10% above the base rate)
• Fixed costs up to the end of the relevant period
• Costs from the expiration of the relevant period up to trial on an indemnity basis
• Interest on those costs (rate to be determined by the Court not exceeding 10% above the base rate)

Commentary

In holiday sickness cases I had on some occasions 5-6 Claimants. All of them under a CFA in a fixed recoverable costs basis. Subject to any higher authority, each would recover their own fixed costs. The actual amount of work undertaken would have been far less than what I could have recovered in fixed costs. Therefore I would want to seek the damages benefits of Part 36 but not indemnity costs.

However a single Claimant, where lots of work has been incurred, would benefit from these indemnity costs. Even better, an early listing of trial (at allocation stage) could mean pre-listing, post trial costs with all work following receipt of the fast track Order assessed on an indemnity basis.

Something to consider in respect of when it is best to make your client’s Part 36 offer.

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.