Attersley v UK Insurance Ltd: Court of Appeal Clarifies Costs Regime for Late Part 36 Acceptance
An important costs case involving FRCs, the multi-track and Part 36 that hasn’t had enough attention is Attersley v UK Insurance Ltd [2026] EWCA Civ 217.
In short, the key principles are these:
- In a claim that moves from one costs regime to another (in this case FRCs to hourly rate/time spent costs); and
- Where a defendant Part 36 offer is made and the relevant period covers the first costs regime but is accepted by the claimant outside of the relevant period when the second costs regime applies;
- The applicable costs regime is that which would have applied had the offer been accepted within the relevant period.
The claimant was injured in a road traffic accident in 2018 and initially pursued the claim through the RTA Protocol. After the claim exited the protocol, proceedings were issued under CPR Part 7. The defendant insurer made a Part 36 offer, which the claimant did not accept within the 21-day “relevant period” (when the FRCs regime applied). At the end of that period the claim had not yet been allocated to a track, but by the time the offer was accepted it had been allocated to the multi-track (thereby triggering hourly rate/time spent costs).
The key issue was whether the claimant’s recoverable costs were limited to the costs that would have applied had the offer been accepted withing the relevant period (i.e. FRCs under CPR Part 45), or whether she was entitled to hourly rate/time spent costs on the standard basis (given the case was subsequently allocated to the multi-track).
At first instance, HHJ Duddridge held that the claimant was restricted to fixed costs. On appeal, Stacey J reversed that decision, holding that standard basis costs applied because the case had become a multi-track claim.
The Court of Appeal allowed the insurer’s appeal and restored the original decision. It held that the relevant rule was CPR 36.20 (now CPR 36.23), which governs costs where a Part 36 offer is accepted late in a claim that began within the RTA Protocol or other fixed-cost regimes.
The court concluded that the fixed costs regime continues to apply, even if the case is later allocated to the multi-track, provided the relevant period expired before allocation.
Accordingly, the claimant’s recovery was limited to FRCs, and not hourly rate/time spent costs.
Written by Nick McDonnell, Director and Costs Lawyer
