The finding that a successful Part 36 offer trumps fixed recoverable fees under Part 45 CPR in Broadhurst has now been extended to include the dislodgement of the cap on provisional assessment costs contained in CPR 47.15(5) CPR.

In the unreported case of Lowin, the Apellant made a Part 36 offer in respect of her costs of the action which was bettered on provisional assessment.  The Costs Master  agreed that the Appellant was entitled to her costs of the assessment process on the indemnity basis but found that such costs would still be limited by CPR 47.15(5) to £1500.00 + VAT plus the Court fee.

On appeal to the High Court, the Master’s decision was overturned.  Mrs Justice Laing held that there was a conflict between CPR 36.17 and CPR 47.15(5) and by applying the reasoning from Broadhurst found that the cap is removed by the award of indemnity costs.

The Court referred to the removal of the cap as incentivising Parties to accept reasonable costs offers or would otherwise risk an adverse costs order being made.