The importance of correctly framing offers is highlighted in a recent personal injury matter involving faulty work equipment, dealt with by our Solicitor/Senior Costs Draftsman Christopher Knibb. The claim involved a defective lorry trailer in which the curtain locking mechanism, which should have been welded to the frame, had broken, allowing for the tension bar to spring up and hit the Claimant in the face, resulting in extensive facial injuries.

Following the serving of the Bill of Costs on behalf of the client, the Defendant made an offer of 56% of the Bill. When this was rejected by Christopher, the Defendant then offered 59% of the Bill. These offers were both “fully inclusive of profit costs, VAT, and disbursements” and were not made pursuant to Part 36.

Points of Dispute were requested by MRN to understand why the Defendant’s offers were so low. The Points were served on 1.9.16 and disputed the (pre-LASPO) fixed EL success fee of 25%, offering 12.5% for an RTA. The Defendant then made an offer in the following terms “in accordance with CPR 47 PD 8.3, our client makes a revised offer to pay £15,100.00, fully inclusive of profit costs, VAT and disbursements”.  Christopher served Replies on 15.9.16 and requested improved proposals, maintaining this was not an RTA for various reasons including that the trailer was not a motor vehicle and the accident did not occur in a public place. The Defendant failed to respond so a Provisional Assessment took place.  The parties agreed the assessed Bill at £14,541.14 and interest at £252.23. The remaining issue was the liability for the summarily assessed assessment costs of £2,180.35.

The Defendant submitted that their “fully inclusive” offers were actually exclusive of interest and DA costs. They relied on CPR 47.19 PD 19 and that “fully inclusive of profit costs, VAT, and disbursements” did not include interest – so should be taken as an offer only against the Bill. The Defendant submitted that they should pay Claimant’s costs up to 15.9.16 and that Claimant pay Defendant’s costs thereafter.

Christopher submitted that the Defendant’s offer should be taken as “fully inclusive” as assessment costs can only be “profit costs, VAT and disbursements” and the offer did not specifically include or exclude interest.  We submitted that the Claimant had clearly achieved a better result than £15,100 given that the bill and interest were agreed in the sum of £14,793.37. Although it was difficult to determine what the Defendant had offered for assessment costs, it was clear that the balance of £306.63 was insufficient in light of the assessed figure of £2,180.35.

The court agreed with Christopher’s submissions, stating that they were satisfied that the offer of £15,100 was exclusive of interest but inclusive of assessment costs and that the Claimant has beaten the Defendant’s offer. The Defendant was ordered to pay the Claimant’s assessment costs of £2,180.35, so a total recovery of £16,973.72 against the offer of £15,100.

This matter highlights the importance of properly framing your offers. If the Defendant had made their offer of £15,100 by Part 36 then it would certainly have excluded assessment costs and it is unlikely that the Claimant would have beaten it. These are the technicalities that Christopher enjoys arguing.