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Guy, those aren't the applicable sections of Part 36. It's CPR Part 36.20 which applies in this instance but there is a hole in the rules.

Had the Claimant accepted the Defendant's offer out of time the relevant rule is:

"4) Subject to paragraphs (5), (6) and (7), where a defendant’s Part 36 offer is accepted after the relevant period—

(a) the claimant will be entitled to the fixed costs in Table 6B, Table 6C or Table 6D in Section IIIA of Part 45 for the stage applicable at the date on which the relevant period expired; and

(b) the claimant will be liable for the defendant’s costs for the period from the date of expiry of the relevant period to the date of acceptance."

Here though, it was the Defendant accepting a Claimant's Part 36 out of time. There simply is no provision in the rules for what is supposed to happen under such circumstances.

So what to do? Look to 36.13(4) (which does not apply) for inspiration (and doesn't really say much of substance anyway). Or look to 36.20(4) (which would apply if the tables were turned) for inspiration and award fixed costs to the applicable stage on the date of acceptance?

The answer is probably that the rules need re-writing to deal with the scenario (as do at least 4 or 5 other areas within the exceedingly shoddily drafted sections of the CPR which were introduced with the portal and fixed costs rules).

I remember rolling out the training across my firm before the implementation of these rules and we noted so many obvious holes in them that years of satellite litigation were all but guaranteed. And here we are, years on, with Quader, Bird etc over the past year alone and presumably this case will not be the last word on this particular issue.

Why can't the draftsmen simply get it right in the first place or at least listen to the feedback about obvious lacunae that were apparent to practitioners the first time we saw the draft rules. Problems like this could have and should have been addressed in the first update after implementation - many knew that they were apparent from day one.