“If a claimant wishes to benefit from the provisions of paragraph 7.13 to 7.22 (and by doing so be paid an interim payment), he or she must obtain a stay under paragraph 7.12. This, to my mind, is the natural reading of the Protocol. It is also entirely understandable why the drafters of the Protocol would wish to restrict a claimant’s ability to seek interim payments under paragraphs 7.13 and 7.18 to certain defined circumstances (namely, those that are set out in paragraph 7.12)…. it must follow that the Claimant wrongly exited the Portal.”
This case addressed two novel questions:
i) Where a protected party accepts a Part 36 offer is the other party subsequently able to withdraw that offer before approval of the settlement?
ii) When the court is asked to approve a settlement, on what grounds (if any) can a Part 36 offer be withdrawn?
Overturning a first appeal decision of His Honour Judge Wulwik in the High Court, Lord Justice Newey determined that acceptance of a Part 36 Offer which referred to CPR 36.13 and offered to pay “costs to be subject to detailed assessment if not agreed” did not amount to contracting out of fixed costs, which continued to apply.
In November last year we reported on the case of Finnegan v Frank Spiers  EWHC 3064 (Ch) in which Mr Justice Birss held that there is no jurisdiction to award a payment on account under CPR 44.2(8) in circumstances where a claim is settled by way of acceptance of a Part 36 Offer.
Following the decision of Birss J in J P Finnegan v Spiers (t/a Frank Spiers Licensed Conveyancers)  EWHC 3064 (Ch) which we reported on last year, HHJ Rawlings has found that the court has no power to award a payment on account of costs in circumstances where the substantive action has settled by way of acceptance of a Part 36 Offer.