Laura Attersley v UK Insurance Limited [2026] EWCA Civ 217

March 24, 2026

Laura Attersley v UK Insurance Limited [2026] EWCA Civ 217: late acceptance of Part 36 offer did not displace fixed costs in an ex-Protocol RTA claim

Introduction

In Laura Attersley v UK Insurance Limited [2026] EWCA Civ 217, the Court of Appeal considered an important costs issue arising at the intersection of Part 36 and the pre-October 2023 fixed costs regime for certain personal injury claims that had exited the RTA Protocol.

The question was whether, in an ex-Protocol claim, a claimant who accepted a defendant’s Part 36 offer only after expiry of the relevant period could recover standard basis costs because, by the date of acceptance, the case had been allocated to the multi-track.

The Court of Appeal held that she could not. Where the relevant period expired at a time when the claim still fell within Section IIIA of Part 45, the costs consequences of later acceptance were governed by CPR 36.20, not CPR 36.13, notwithstanding that the case had been allocated to the multi-track before acceptance.

The decision is significant because it rejects the argument that later multi-track allocation alters the costs regime applicable to an earlier Part 36 offer whose relevant period expired while the claim remained within the fixed costs scheme. It also underlines a wider procedural point. Part 36 is intended to produce certainty, enabling parties to assess settlement risk by reference to the position at the end of the relevant period rather than by reference to later case management events.

Factual background

The claimant was injured in a road traffic accident on 9 March 2018. On 19 March 2018, her solicitors submitted a Claim Notification Form under the RTA Protocol. At that stage, the claim was said to be worth up to £10,000 and the injuries were identified as soft tissue, whiplash and other injuries.

The claim exited the RTA Protocol on 9 April 2018 after the defendant requested its removal pending further liability enquiries. Liability was later admitted on 29 April 2019.

Shortly before limitation expired, the claimant issued Part 7 proceedings on 13 February 2021. By then, the scale of the claim had changed materially. The particulars of claim valued the claim at up to £150,000 and relied upon ongoing physical and psychological difficulties, supported by medical evidence from a psychologist, an oral and maxillofacial expert and an ENT expert.

On 4 March 2021, the defendant filed a defence admitting liability and, on the same day, made a Part 36 offer of £45,000. The claimant did not accept the offer within the relevant period, which expired on 25 March 2021.

At a case management conference on 5 January 2022, the claim was allocated to the multi-track. The claimant was granted permission to rely on six medical experts and the defendant on four. Directions were given for a five-day trial and a costs management order was made. The parties agreed that the claim was suitable for the multi-track having regard to value, expert evidence and the trial estimate.

On 18 May 2022, the defendant applied to amend its defence to allege fundamental dishonesty in relation to quantum. That application was never heard because, on 8 July 2022, the claimant accepted the existing Part 36 offer, which had not been withdrawn. Although her covering correspondence purported to preserve a claim to reasonable assessed costs rather than fixed costs, it was common ground that the acceptance itself was unequivocal and gave rise to a binding compromise on damages. The remaining dispute concerned costs only.

That dispute mattered because it was common ground that, had the claimant accepted within the relevant period, she would only have been entitled to fixed costs, subject to CPR 45.29J. It was also common ground that, under the rules then in force, the defendant’s ordinary entitlement to post-expiry costs would in practice be rendered unenforceable by qualified one-way costs shifting. The real issue therefore became whether the claimant’s own recoverable costs were fixed or standard basis costs.

The issue before the court

The central question was whether, in an ex-Protocol RTA claim, CPR 36.20 still governed the claimant’s costs where the defendant’s Part 36 offer had been made before allocation, the relevant period had expired before allocation, but the offer was accepted only after the claim had been allocated to the multi-track.

If CPR 36.20 applied, the claimant was confined to fixed costs. If not, the claimant argued that CPR 36.13 applied and that she was entitled to standard basis costs.

That argument engaged the effect of Qader v Esure Services Ltd [2016] EWCA Civ 1109. The claimant’s case, accepted by Stacey J on first appeal, was that once an ex-Protocol case is allocated to the multi-track, the fixed costs regime in Section IIIA of Part 45 falls away altogether, with the result that CPR 36.20 no longer applies. The defendant contended that this read Qader too broadly, ignored the structure of Part 36 and undermined the certainty which Part 36 is intended to provide.

The Court of Appeal’s reasoning

Lord Justice Miles began with the wording and structure of the rules. CPR 36.13 is expressly stated to be subject to CPR 36.20. The correct approach was therefore not to begin with the standard basis language in CPR 36.13(3), but first to ask whether the case fell within CPR 36.20 at all.

On the face of the rules, it plainly did. CPR 36.20 applies where a claim no longer continues under the RTA or EL/PL Protocol pursuant to CPR 45.29A(1). This claim had started under the RTA Protocol and then exited it. At least until allocation to the multi-track, it remained within Section IIIA of Part 45.

The Court of Appeal rejected the claimant’s submission that multi-track allocation required the case to be treated for all purposes as though it had never previously fallen within Section IIIA. Qader was concerned with a different question, namely whether cases allocated to the multi-track should themselves be subject to the Section IIIA fixed costs code. It established that the legislative intention was not to impose that regime on multi-track cases. It did not establish that multi-track allocation retrospectively erased the claim’s prior position within Section IIIA for every procedural purpose, still less that it displaced CPR 36.20 where the relevant period had already expired before allocation.

That distinction was central to the reasoning. Lord Justice Miles treated the phrase in CPR 45.29B, “for so long as the case is not allocated to the multi-track”, as temporal rather than retroactive. In other words, the provision means that fixed costs apply until allocation. It does not mean that, once allocation occurs, the case must be treated for all purposes as though fixed costs had never previously applied.

The court also emphasised the internal logic of Part 36. Part 36 is a self-contained procedural code, and certainty is one of its essential features. A defendant making a Part 36 offer is entitled to know what costs environment applies during the relevant period. If the costs consequences of late acceptance could later be altered by an allocation decision outside the parties’ control, the operation of Part 36 would become contingent and unstable.

On that basis, CPR 36.20 was said to operate in a straightforward way. If the relevant period expires while the claim remains within Section IIIA, then a later acceptance after expiry attracts the fixed costs applicable at the date the relevant period expired. That reading gives proper effect to CPR 36.20(4), which expressly directs attention to the stage applicable at the end of the relevant period.

The rival interpretation would mean that a claimant might recover more costs by accepting late than by accepting in time, solely because of a later allocation decision. The court regarded that result as surprising and inconsistent with the policy of Part 36.

The court was likewise unpersuaded by the suggestion that the defendant could simply have withdrawn the offer if it wished to avoid that outcome. A defendant was entitled to leave the offer open and to expect that, if accepted late, its liability to the claimant for costs would remain anchored to the regime applicable when the relevant period ended.

The court further held that, even if there were some tension between the relevant provisions, CPR 36.20 would prevail as the specific rule governing the costs consequences of acceptance of a Part 36 offer in the class of ex-Protocol claim under consideration. It was therefore unnecessary to decide the defendant’s alternative argument based on Williams v Secretary of State for Business, Energy and Industrial Strategy [2018] EWCA Civ 852.

The decision

The Court of Appeal allowed the defendant insurer’s appeal and restored the order of HH Judge Duddridge.

The ratio can be stated shortly. In an ex-Protocol claim where a defendant’s Part 36 offer is made before allocation, the relevant period expires before allocation, and at that point the claim still falls within Section IIIA of Part 45, the costs consequences of later acceptance are governed by CPR 36.20, not CPR 36.13, even if the case is allocated to the multi-track before the offer is later accepted.

The claimant is therefore confined to the fixed costs applicable at the expiry of the relevant period, notwithstanding later multi-track allocation before acceptance.

The court expressly declined to decide other scenarios, including the position where a Part 36 offer is made after multi-track allocation, or where the offer is made before allocation but the relevant period expires only after allocation. Lord Justice Miles observed that those situations are not addressed with complete clarity by the existing drafting and suggested that the Rules Committee may wish to consider them.

Conclusion

The immediate significance of the decision lies in its practical treatment of late acceptance. Claimants in ex-Protocol personal injury litigation cannot assume that later multi-track allocation will convert a missed opportunity to accept within time into an entitlement to standard basis costs. If the relevant period expired while the claim remained within Section IIIA, fixed costs continue to govern the claimant’s own recovery on late acceptance.

The decision is also important because it rejects an over-expansive reading of Qader. The Court of Appeal made clear that Qader does not mean that multi-track allocation retrospectively erases the fixed costs regime for every procedural purpose. The judgment instead draws a careful distinction between the prospective disapplication of fixed costs upon allocation and the retrospective rewriting of the claim’s earlier procedural status, which it does not permit.

Just as importantly, the case reinforces the centrality of certainty within Part 36. The court’s reasoning proceeds on the footing that parties should be able to evaluate the consequences of a settlement offer by reference to the position at the expiry of the relevant period. That is especially important in a procedural code intended to encourage settlement and to allocate costs risk in a predictable way.

For claimant practitioners, the case is a reminder that the timing of advice on settlement carries real costs consequences distinct from the merits of the damages figure. Once an ex-Protocol claim is underway, and particularly where the case may later justify multi-track allocation, advice about allowing a defendant’s Part 36 offer to pass beyond the relevant period must be given with considerable care. The prospect of later allocation does not mean that standard basis costs will become available on a subsequent acceptance.

The decision also has an obvious professional negligence dimension. Solicitors advising on late acceptance of settlement offers, or on the likely recoverability of costs, should be careful not to assume that later multi-track allocation alters the earlier Part 36 costs position. The difference between fixed costs and standard basis costs may be financially significant, and mistaken advice on that issue may affect both settlement decisions and client expectations as to net recovery.

Further Reading

• Part 36 Offers under the Civil Procedure Rules: Strategy and Consequences
• Understanding Court Tracks: Allocation of Civil Claims
• Typical Litigation Claim Process in England & Wales
• Solicitor Negligence Claims

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