10% ‘additional amount’ denied following successful Part 36 Offer on hourly rates

white-anor-v-wincott-galliford-ltd

This was a decision of Deputy Master Friston (author of Friston on Costs) in the Senior Courts Costs Office. Having determined that the Claimants had made and beaten a valid Part 36 Offer solely in relation to hourly rates the Master concluded that it would be unjust to award them an additional 10% uplift on the assessed profit costs.

“The suggestion that a paying party ought to pay an ‘additional amount’ on the whole of a receiving party’s profit costs merely because he or she did not accept an offer in respect of only one component of those costs (namely, the hourly rates) is, in my view, unreal. It would be unjust to do what the Claimants ask.”

The decision had no practical impact on the Claimants who in any event were awarded the maximum £1,500 profit costs allowed under CPR 47.15(5), it being accepted that this limitation applied irrespective of whether an additional amount was awarded. However, it provides a useful examination and summary of a number of higher court authorities in relation to the ‘injustice test’ under CPR 36.17(4).

ANDREW AND SAMANTHA WHITE (EXECUTORS OF THE ESTATE OF WILLIAM WHITE, DECEASED) v WINCOTT GALLIFORD LTD (SENIOR COURTS COSTS OFFICE, 2019)