The case of ABC -v- Barts Health NHS Trust  EWHC 500 (QB) decided earlier today provides an object lesson on the dangers of Part 36. His Honour Judge McKenna considered whether he should depart from the “usual rules” in relation to costs after a Part 36 offer was accepted late.
“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.”
The claimant, through his litigation friend, was bringing an action for clinical negligence.
Breach of duty was admitted at an early stage. Some admissions were made in relation to causation.
The claim was put at £1 million plus periodical payments of £230,000 a year.
The defendant made a Part 36 offer of £50,000 which expired on the 4th June 2015.
This offer was initially not accepted, however the claimant sought acceptance of the offer in February 2016 the court approved the settlement in March 2016.
THE ISSUE: COSTS FOLLOWING THE PART 36 OFFER
The Claimant contends that there is no good reason to depart from what I will refer to as the usual order provided for in CPR Part 36.13(5), namely the Claimant is awarded its costs up until 25th June 2015 with the Claimant paying the Defendant’s costs between 25th June 2015 and 25th February 2016. The Defendant by contrast submits that having regard to all the circumstances of the case, such an order would be unjust because it fails to reflect that the Claimant has failed in relation to the vast majority of his pleaded claim and contends for an order that the Claimant’s costs up to 25thJune 2015 be limited to the issue of the femoro-femoral bypass graft (thus excluding all the causation costs) and that the Claimant should pay the Defendant’s costs relating to the causation of the stroke and the losses consequent thereon up until and including 25th June 2015 and all the Defendant’s costs of the action thereafter. The issue therefore is whether it is unjust to make the usual order and, if it is, what different order should the court make.
THE PART 36 OFFER
The material provisions of the Defendant’s offer dated 4th June 2015 which, as I have previously recorded, were expressed to be in settlement of the whole claim are as follows:
“If the Claimant accepts the Defendant’s offer by 25.06.15 the Defendant will:
(1) Pay the £50,000 (less interim payments) (if any) within 14 days of the date of acceptance or (in cases requiring an order for payment) the date of the order for payment;
(2) Pay to the Department for Work and Pensions (the “DWP”) recoverable benefits (if any), paid to the Claimant up to the date of this offer;
(3) Pay to the DWP any further recoverable benefits paid to the Claimant from the date of this offer to the actual date of payment of the net amount. For avoidance of doubt the Defendant will not deduct any part of the further recoverable benefits from the net amount;
(4) Pay the Claimant’s reasonable costs up to 25.06.15 or the date of acceptance of the Defendant’s offer, whichever is the earlier, such costs to be agreed or assessed on the standard basis in accordance with CPR Part 36.1. In addition if approval is required by the Civil Procedure Rules, the Defendant will pay the Claimant’s reasonable costs of obtaining approval of the settlement.”
THE JUDGE’S CONCLUSIONS: THE USUAL RULES APPLY
It was submitted on behalf of the Claimant that at the time the Defendant had made its offer in June 2015 the Defendant was in possession of all the relevant material and information in order properly to evaluate the claim and make an offer to settle the whole claim. It did not, as it could have done, protect its position so far as the causation costs (if I may so describe them) are concerned by framing its Part 36 offer in such a way as to exclude that issue. Having failed so to do, what it submits rhetorically has happened subsequently to render the usual order in respect of the pre-acceptance of costs (and the order which would have flowed as a matter of course if the offer had been accepted in time) unjust. Furthermore, looking at the particular factors in CPR 36.17(5) there is nothing which renders the usual order unjust. The terms of the offer provide for a settlement of the whole claim. Such a settlement envisaged that all the pre-acceptance costs (subject to detailed assessment) would be recoverable by the Claimant and there has been no new information which has come into the Defendant’s possession which might affect the position.
What is said on behalf of the Defendant is that if the Claimant had simply, as it submits the Claimant should have done, brought a claim for the delay in surgery, fasciotomy and femoro-femoral crossover bypass graft none of the quantum experts would have been required. The claim would have been settled for general damages and at proportionate cost. It concedes that if the Claimant had accepted its Part 36 offer within the relevant period then the Defendant would have been liable for the whole of the Claimant’s costs to that date including the causation costs (subject to detailed assessment) but submits that by rejecting the offer the Claimant has forfeited its automatic right to the usual order as to costs so that the court has to exercise its discretion in accordance with the relevant provisions of Part 36. In so doing the court must look at all the circumstances of the case including the specific factors referred to in CPR 36.17(5) in order to determine whether it would be unjust to make the usual order and that when all the circumstances of the case are considered the court should in fact make a different order. In this case, the court can easily separate out the evidence relating to the issues in which the Claimant was successful and the issues in which the Claimant was unsuccessful and that an issue-based costs order, albeit unusual, would best meet the objective of doing justice between the parties.
At the time that the Claimant made his decision to reject the Defendant’s Part 36 offer, he knew exactly what the Defendant’s case was in respect of each of the three issues and in particular in respect of causation and was aware of the Defendant’s expert evidence on the issue and why the Defendant suggested that the expert evidence relied upon by the Claimant was flawed (exchange of expert reports on causation from cardiothoracic surgeons, vascular surgeons, nephrologists and urologists having been exchanged on 30th January 2015 and the cardiac surgeons having had a joint meeting on 5th May 2015). Moreover, even after the rejection of its offer the Defendant continued to set out in correspondence why it considered the Claimant would fail on the causation issue (for example in Kennedys’ letter of 4th November 2015).
Thus it was submitted that the Defendant had acted reasonably throughout in making early concessions in formulating a generous Part 36 offer and in all the circumstances it would be unjust if it were now to be placed in a worse position than it would have been had it gone to trial (a trial that was only days away when the Part 36 offer was eventually accepted by the Claimant) and won on the causation issue. Moreover, given that the Claimant had rejected the Defendant’s generous Part 36 offer the court could reasonably infer that if the Defendant had made a more restricted offer it would not have found favour with the Claimant who himself has acted unreasonably in rejecting the Defendant’s offer and causing both parties to incur very substantial additional costs only to accept the offer made in June 2015 a matter of days before trial was due to begin.
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 difficulty with the broad thrust of the Defendant’s submissions as it seems to me is that 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. True it is that in rejecting the offer and pursuing the action up to or close to trial the Claimant acted unreasonably but Part 36 expressly provides an effective remedy to cater for that very situation in that the Claimant will have to pay all the Defendant’s costs incurred post expiry of the Part 36 offer and in the circumstances of this case it seems to me that the assessment of those costs should be on the indemnity basis. To my mind, there is nothing unjust about making the usual order in the circumstances of this case, accepting as I do, the thrust of the Claimant’s submissions on this issue.
It follows in my judgment, subject to any submissions which the parties may wish to make as to the terms of an order to reflect the substance of this judgment, that the appropriate order in respect of costs is as follows:
i) The Defendant do pay the Claimant’s costs up to 25th June 2015 on the standard basis to be subject to a detailed assessment if not agreed and with the Claimant’s solicitor waiving any claim to further costs.
ii) The Claimant do pay the Defendant’s costs from 25th June 2015 to 24th February 2016 on the indemnity basis to be subject to detailed assessment if not agreed.
iii) The Defendant do pay the Claimant’s costs from 24th February 2016 on the standard basis to be subject to a detailed assessment if not agreed and with the Claimant’s solicitor waiving any claim to further costs.