CA awards claimant all his costs despite two-year delay in accepting part 36 offer


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org/ew/cases/EWCA/Civ/2012/1053

html” target=”_blank”>SG v Hewitt [2012] EWCA Civ 1053 concerned a six-year-old boy who suffered a head injury in a 2003 road traffic accident

The part 36 offer was made in April 2009 but not accepted until July 2011 because his lawyers wanted to wait for him to reach adolescence for a proper diagnosis of the long-term effects of the injury

However, while accepting that this was a reasonable court of conduct, Mr Justice Popplewell said he was not satisfied that this was an exceptional case or that it would be unjust for the normal order in relation to costs to be made, meaning the claimant should pay the defendant’s costs from expiry of the offer in April 2009

“The uncertainties of the prognosis are contingencies which fall within the usual litigation risks of claims of this kind,” he said

Giving the lead judgment, Lady Ju

stice Black said Popplewell J “did not give weight to the particular features of this case which should have been put into the balance against the normal order”, such as that had approval of the settlement been sought in 2009, the judge would probably not have given it because of the uncertainty, and that the uncertainty would be resolved within the limitation period

She warned, however, that the decision to award the claimant his costs throughout was very fact specific

Lady Justice Arden said: “In this case, the time that elapsed between the date on which the part 36 offer expired and the date on which that offer was accepted was needed to enable those advising the child to be satisfied that the offer could properly be accepted

This was because the prognosis for the claimant's injury could only accurately be determined by waiting until he neared or reached adolescence

“In my judgment, these are circumstances which make it unjust not to depart from the general risk-shifting rule in part 36

In my judgment, this is, therefore, a case in which the court can be satisfied that it is unjust not to ‘order otherwise’ under CPR 36

10(5)

Lord Justice Pill distinguished the case from the 2007 Court of Appeal ruling in Matthews v Metal Improvements Co Inc [2007] CP Rep 27

“To ignore the lack of capacity of the claimant and to down play the reasonableness of the conduct of his legal advisers as relevant factors will in this and many other cases divert the court from the requirement to do justice on the particular facts

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