Jurisdiction(s):
United Kingdom

QOCS precludes costs set-off; enforcement limited to damages ordered: Ho v Adelekun and practical implications for PI settlements and Part 36 (England and Wales)

Published on: 07 October 2021

Published by a LexisNexis PI & Clinical Negligence expert

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Article summary

Ho (Respondent) v Adelekun (Appellant) [2021] UKSC 43 What are the practical implications of this case?

This ruling carries particular practical significance when read alongside Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 1654, [2018] 1 WLR 6137. Cartwright established that a defendant may enforce costs only against the amount of any damages and interest ordered in the claimant’s favour, and not against money payable under a settlement, for example by Tomlin order or pursuant to Part 36. As the great majority of personal injury claims resolve by agreement, Adelekun has broad and important consequences for claimants, defendants and their representatives:

a defendant will, in general, be able to recoup its costs only if, at trial, an order is made awarding damages to the claimant. Since proceeding to trial and then losing is usually the last outcome a defendant seeks, in practice the chance of any meaningful costs recovery in a typical claim is exceedingly small
there is no adverse costs penalty to a claimant who accepts a defendant’s Part 36 offer out of time...

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