Part 36 – two recent and interesting cases

The cases of Sutherland v Khan and Summers v Bundy look at the way fixed costs interacts with the CPR 36 regime.

Sutherland v Khan 2016 


  • Fixed Costs case.
  • Defendant accepted Claimant’s Part 36 offer out of time.
  • Claimant sought fixed costs up to the expiry of the offer and indemnity costs thereafter.
  • Defendant’s position was that the Claimant was simply entitled to fixed costs.
  • The Claimant was awarded fixed costs up to the date of the expiry of the Part 36 offer and costs on the indemnity basis thereafter.
  • The District Judge applied CPR 36.13(5) and (6)
  • The District Judge made some good comments in his Judgment on Part 36 which included the following (paragraph 27):

it follows that for the Court to deny the consequences that flow from accepting a Part 36 out of time the Court has to make pretty exceptional findings and there has to be some very good reason as to why it is unjust not to make the usual order.  The very fact that the Claimant obtains a “windfall” most certainly does not constitute unjustness, under Part 36.17”

Summers v Bundy 2016


  • Claimant awarded an additional 10% for damages by the Court of Appeal
  • At first instance the 10% was rejected.
  • Claimant had made a Part 36 offer for an additional 9%!
  • The Claimant was awarded indemnity costs from the date of expiry of the offer and costs on the standard basis for costs pre-expiry of the offer.

This case demonstrates how tactical Part 36 can now be and how to use it to your client’s advantage.  The case also highlights the benefits of an early and ‘well pitched’ Part 36 offer.

Thank you to Civil Litigation Brief ( which is where I located these cases.

This blog was prepared by Andrew McAulay who is a Partner at Clarion and the Head of the Costs and Litigation Funding department. Andrew can be contacted at or on 0113 336 3334.

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