The High Court in in ABC v Barts Health NHS Trust  EWHC 500 (QB) has rejected a defendant’s attempt to avoid paying costs in a case settled for less than was originally claimed.
In the clinical negligence case Barts Health NHS Trust, maintained that the claimant had forfeited their right to part 36 provisions, having rejected an offer to settle in June 2015.
The claimant, had claimed for more than £1m plus annual payments of £230,000 after treatment at Whipps Cross Hospital in 2003 in which the claimant suffered a stroke which prevented a scheduled transplant. Barts Health NHS Trust admitted a breach of duty early on in the case, however, causation issues related to the stroke remained in dispute.
In February 2016, two weeks before the trial of action was due to start, the claimant accepted the defendant’s part 36 offer of £50,000: which, the offer was expressed to be to settle of the ‘whole’ the claimant’s claim.
The claimant argued in a hearing this month that part 36 provisions meant that they were entitled to costs up to June 2015. The defendant, said Tees Law, had not protected its part 36 costs by framing the offer to take account of that. The defendant claimed that as the majority of the claim was unsuccessful, this would be ‘unjust’ because if the Claimant had simply submitted the small claim, none of the expert witnesses would have been required and costs would have been significantly reduced.
His Honour Judge McKenna accepted that whilst the claimant may have ‘acted unreasonably’, part 36 already offers a remedy to cater for that situation:
“It is common ground that Part 36 is a separate, self-contained code and must be applied as such as Lord Justice Ward put it in Shovelar v Lane 1 WLR 637. Moreover, the court’s discretion to depart from the usual order is constrained by the precondition that its full enforcement would be unjust. It follows – it seems to me – that the discretion is more circumscribed than the broad discretion under CPR 44.2.”
“Moreover, the specific considerations identified in CPR 36.17(5) have this common feature that they focus analysis on the circumstances of the making of the offer, the provision or otherwise of the relevant information in relation to it rather than more general issues as to conduct although I remind myself that the requirement to take into account all the circumstances does enable the court to take a broader view and to consider the various matters relied upon by the Defendant.”
“The defendant had the means and opportunity to protect itself in respect of the costs that it was going to have to incur in respect of the causation issue, but chose for whatever reason when making its part 36 offer to frame the offer as a settlement of the whole claim and then subsequently when that offer was not accepted did not make any revised offer excluding causation,” he added
The defendant was ordered to pay the claimant’s costs up to June 2015, with the claimant paying the defendant’s costs from June 2015.