A claimant who beat her part 36 offer in a medical negligence case can be the subject of a proportionate costs order, the High Court has decided.
Judge Saffman, sitting as a High Court judge in Leeds, said he did not accept that the existence of a part 36 offer “insulates the offeror” from such an order.
The judge said he accepted that part 36 was a “self-contained regime” and made no reference to orders of this nature.
“Nevertheless, in so far as such an order is necessary to avoid injustice, it is in my view permissible for the court to make it.”
Saffman J said the part 36 rules specifically stated that they could be disapplied if applying them would lead to injustice.
“I have already found that in the absence of a part 36 offer I would have made a proportionate costs order. I do not accept that such an order ought not to be made simply because there has been a part 36 offer.”
In Webb v Liverpool Womens’ NHS Foundation Trust  EWHC 449 (QB), Saffman J recounted that he had ruled at an earlier hearing in January that the defendant was negligent in not delivering the claimant by caeasarean section, as a result of which she suffered injuries.
However, the judge ruled that she had not established the ‘second limb’ of her case, namely that the delivery itself was negligently managed.
The claimant made a part 36 offer in October last year, offering to settle liability on the basis that she would receive only 65% of the damages that would normally accrue, rather than the 100% that she went on to achieve.
The defendant argued that the consequences of part 36 should be disapplied, because, by reference to part 36.14(4), it would be unjust to apply them.
Even if part 36 was not disapplied, the defendant argued that this did not prevent the court from making an “issue-based or proportionate costs order” to reflect the fact that the claimant failed in establishing the second limb.
“In the circumstances I propose to make a costs order in favour of the claimant limited to a percentage of her costs,” Saffman J said.
“The figure shall be that which is appropriate to reflect the percentage of time expended on establishing the first limb but not the second and 100% of the disbursements directly incurred in establishing the first limb but not the disbursements directly incurred in seeking to establish the second limb.”
The judge rejected an argument by the trust that the 10% uplift in damages under part 36 should not be awarded. “That is a windfall over and above the damages appropriate to compensate for loss,” he said. “It is a windfall to which the claimant is entitled by virtue of the rules, but it is a windfall nevertheless.”
He concluded that he lacked sufficient information to determine what the percentage deduction from the claimant should be and said he would hear oral submissions at a telephone hearing.