It has been my understanding/interpretation and that of many of my opponents (in both litigation and advocacy) that a case issued before 6th April 2023 but settles (whether by Part 36 or Tomlin) will not be damages that are a pool of funds that a Defendant can enforce against.
So for example, First Defendant settles and the Claimant discontinues their claim against the Second Defendant. Of course the Second Defendant has a right to its costs of the action but the enforcement is limited to the aggregate amount in money terms of any orders for damages and interest made in favour of the Claimant.
I thought this was clear but the Judge and my opponent at an Infant Approval Hearing did not believe this to be the case (I say the Judge didn’t believe, but the outcome as you will see is that he decided to avoid making a determination).
The IAH (inappropriately-long approval hearing)
The Defendant contested the cost of a neurosurgeon report, of which they wanted to deal with at the infant approval hearing. I could understand that because if they allowed the Claimant to make an application for a determination hearing, then that would be subject to standard costs.
What I did not appreciate was the Defendant intended to seek it cost of sending Counsel to attend. The amount sought in the N260 was approximately £1,600. The Claimant did not do well in terms of the determination of the value of the medical report. That is not what this post is about. It is about what followed.
Whilst I had made a reasonable concession that the Defendant could seek an order in its favour, I submitted it was pointless because the Defendant would be unable to enforce any order in its favour.
I relied predominantly on Ho v Adelekun [2021] UKSC 43, The Scout Association v Kemp [2023] EWHC 2575 (KB) and the White Book entries in the 2023 edition. I also referred to the fact that on the 6th April 2023, CPR was amended to allow for the enforcement against an agreement for damages, which clearly indicated the prior version did not.
My opponent argued that Ho was against me as that only limited the enforcement against damages and the Judge was making an order for damages. I continued to point out that the order was not an order for damages, but an order approving acceptance of the Part 36 offer which was required under CPR 21.10.
Eventually, having overrun by 20 minutes at this point, the Judge decided to make no order as cost for the hearing. I genuinely thought I was going to have to seek permission to appeal and to stay the enforcement until the conclusion of the same.
Fortunately, I did not have to, and this post is to discuss why I think I was right, but also where .I went wrong
Where did I go wrong?
Yup, I made an error – but not fatal.
Ho v Adelekun was relevant to my argument, but I forgot to refer to Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 1654 directly (it was in the White Book commentary which I referred to the Judge).
This was the case that confirmed that the correct interpretation of QOCS was that an order for damages could never be a Part 36 or Tomlin, even if an order is made for enforcement. So when I referred to Ho and my opponent said it didn’t help us, she was right but only to the extent it was not the direct authority. It didn’t change that I was right as per the commentary of the White Book which of course referred to Cartwright.
Further, Ho addressed cost on costs set off because Part 36 damages were not an appropriate pool:-
The first is where the claimant fails at trial and is ordered to pay the defendant’s costs, but is successful (with an order for costs in its favour) at an earlier interim stage, such as in fending off an application for summary judgment by the defendant, or later in winning on a costs assessment. The second is where the claimant succeeds, but by way of settlement rather than at trial. In such a case there is no court order for damages or interest, even if the settlement agreement is annexed to a Tomlin order, and therefore no headroom below the cap available under QOCS for the defendant’s costs enforcement: see Cartwright v Venduct Engineering Ltd[2018] EWCA Civ 1654; [2018] 1 WLR 6137 (“Cartwright”). The third type is where the aggregate of the costs that the claimant is ordered to pay the defendant substantially exceeds the aggregate of the orders for damages and interest which the defendant is ordered to pay the claimant. This is by no means a rarity; a disproportionality between the damages and the costs is all too frequent in modest to medium-sized PI claims which do not settle within the Pre-action Protocols.
Paragraph 7 of Ho v Adelekun
I was correct to refer to Ho because it was clear there was no right to any enforcement of costs whatsoever with a Part 36 settlement.
What did the white book say?
In addition to referring to Cartwright, the White Book also referred to the commentary was quite clear by specifying that only claims after the 6 April 2023, would be open for a Defendant to enforce against any agreement for damages and costs.
The Judge (who was a Deputy) discovered that the sitting District Judge had taken the most recent version of the White Book out of the courtroom and he was left with the 2022 edition, which of course did not have this information in it.
Interestingly, even though the commentary also said that Tomlin Orders and orders allowing for permission to accept Part 36 offers out of time when there was CRU liability, the judge was not satisfied this meant Part 36 was exempt.
Scouts Group v BBK
The reason this case was relevant was because the Scouts Group was a claim against the Claimant Solicitors for costs that they said, were incurred in the negotiation of the cost of the main action between the Scout Group and the Claimant were solely for the Solicitor’s benefit.
The problem for the Scout Group, however, was that the proceedings were issued before the 6 April 2023, and this meant there was no ability to enforce. This is why they pursued the Claimant’s Solicitors.
I relied on this as an example of the practicality and realism that the Claimant would not have any risk of enforcement, and therefore, there was no point in assessing the Defendant’s costs.
The best outcome
A no order as to cost was the best outcome, because the justification given would reduce the risk of an appeal, whereas either finding for or against the Claimant on this point, may have led to an appeal.
Of course, I hadn’t even got to my alternative argument, that the Defendant had no right to costs attending the IAH as CPR 45.29F meant the Defendant wasn’t entitled to anything because it could only be awarded what a Claimant could be awarded, which was nothing (unless CPR 45.29J could be triggered, which had a high threshold).
Obviously, new cases will not have the same protection and Claimants will need to be careful about steps they take as enforcement can be brought against damages and costs even if they are agreed.
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.