Breaking news: freedom from the cap on provisional assessment costs

24th June, 2016

Finally, some good news. The High Court has allowed the cap on provisional assessment costs to be removed where the Defendant failed to beat the Claimant’s Part 36 offer and costs were awarded on the indemnity basis.

In the case of Lowin v W Portsmouth & Co Ltd (20/06/16)

  • The High Court had to decide whether CPR 36.17(4) (award of indemnity costs) removed the cap set out in rule 47.15(5) for the costs of a provisional assessment.
  • The Court confirmed the cap would have been specifically stated in the Part 36 rules at the time they were drafted if the cap was to remain in these circumstances.
  • The cap did not apply to this case.
  • The decision will encourage parties to accept reasonable costs offers otherwise they will be at risk of the costs penalties pursuant to Part 36.

The case is currently unreported but Attain will blog again once the judgment is available for further comment.

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