Part 36 Offers When The Prognosis Is Unclear

This article explores the following issues:

What happens in a clinical negligence or personal injury case where a Defendant makes a Part 36 offer at a stage when the Claimant's prognosis is still uncertain?

If a Claimant waits until the picture becomes clear and then accepts the offer late, will the Defendant be able to recover its costs, or will the court consider that to be unjust in the circumstances?

The background

As has been widely publicised, QOCS cases issued before 6 April 2023, rule 44.14 allows a Defendant to enforce a costs order made in its favour, but only where there has been an Order for damages and interest made in favour of a Claimant.

Cases issued after 6 April 2023 will be subject to the new rule. This allows a Defendant in a QOCS case to enforce a costs order in its favour against a Claimant's order or settlement for damages, interest and costs.