The (as yet unreported) High Court case of Lowin v Portsmouth has found that Part 36 prevails over the costs cap in provisional assessment.
The case extends the principle set out inBroadhurst v Tan  in which the Court of Appeal held that Part 36 could dislodge the fixed cost provisions contained in Section IIIA of Part 45, in respect of low-value road traffic accidents.
In Lowin, the Appellant had made a Part 36 offer in respect of her costs, which she bettered (by £255) on provisional assessment. At first instance, the Master agreed that as she had achieved a result as advantageous as her offer, her costs should be assessed on the indemnity basis under CPR 36.17(4). However, he sought to distinguish the case from Broadhurst and ruled that the costs cap of £1,500 imposed by Rule 47.15(5) should remain.
On appeal, Gurion Taussig of 9 Gough Square successfully argued that Broadhurst applied and that Rule 47.20(4) incorporated Rule 36.17 into Part 47. Rule 36.14 therefore continued to have full force and effect.
The decision will be relevant to all cases that proceed to provisional assessment of costs.
A successful part 36 offer in a provisional assessment removes the £1,500 costs cap, the High Court has ruled. Overturning a decision of Master Whalan in the Senior Court Costs Office, Mrs Justice Laing followed the reasoning of the Court of Appeal earlier this year in Broadhurst v Tan, when it ruled that a party who beat a part 36 offer in a case where fixed fees applied was eligible for indemnity costs,