NHS trust denied costs after settling ‘whole’ claim

Topics: Costs, fees and funding

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The High Court has rejected a defendant’s attempt to avoid costs because a case settled for less than was originally claimed.

Barts Health NHS Trust, represented by national firm Kennedys, said the claimant in a clinical negligence case had forfeited their right to part 36 provisions, having rejected an offer to settle last June.


The claimant, represented by south-east firm Tees Law, had claimed for more than £1m plus annual payments of £230,000 after treatment at Whipps Cross Hospital in 2003.

The bulk of the claim centred on the causation and consequences of a stroke suffered by the claimant in 2006 and their inability to undergo a transplant. Breach of duty had been admitted at an early stage.

But with two weeks until trial of the action, in February this year, the claimant accepted the defendant’s part 36 offer of £50,000. The offer was expressed to be a settlement of the ‘whole’ of the claimant’s claim.

The claimant argued in a hearing this month that part 36 provisions meant it was 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 countered that such an argument would be ‘unjust’ because it failed to reflect that the majority of the claim was unsuccessful.

Kennedys said if the claimant had simply submitted the small claim, none of the quantum experts would have been required and costs would have been significantly reduced.

The defendant argued it would be unjust to be placed in a worse position than if it had gone to trial.

His Honour Judge McKenna accepted the claimant ‘acted unreasonably’ but said part 36 already offers a remedy to cater for that situation.

He added: ‘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.’

The defendant was ordered to pay the claimant’s costs up to June 2015, and the claimant ordered to pay the defendant’s costs from June 2015 to February this year.

Readers' comments (25)

  • Did the claimant get anything at all?

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  • I was wondering the same thing David, rather a lacking write-up.

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  • David and Hotep, if there was ATE insurance the usual terms are that the Defendants costs post Part 36 will be paid by the insurer if the rejection of the offer was based on the advice of the solicitors. My guess it was here, so the Claimsnt should get all the award.

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  • Interesting, Hilton, and thanks for that clarification.

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  • yes thank you very much Hilton for the info and clarity.

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  • You could always try reading the judgment, which is on bailii.

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  • £1m lump sum plus £230,000 p.a. demanded, but £50,000 accepted...Was there any explanation as to why such a modest figure was accepted if the claim was worth anything like the amount sought?

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  • Exactly David, exactly.

    You are thinking along the same lines as I am.

    Poor quality "how much is it worth" or "its worth zillions" (and much more than anyone who might do it properly in the local community with proper experts - thank god we are allowed to post on the back of buses), 'lawyers' .....

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  • David & Raynor:
    The judgment makes clear there were significant causation issues. If the negligence caused all the injuries (including a "catastrophic stroke") the claim would have been worth more.
    It would appear the medical evidence did not support all the causation arguments, which means the admitted negligence only caused some of the injuries, not all of them.
    Differences in value like this are pretty common in complex clinical negligence cases.
    Don't make the mistake our current government is making of lumping them in with low value whiplash claims.

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  • So, DG, if I step off a pavement without looking and I am knocked over,do I start by claiming for 100% of my loss and hope no one notices it was, say, 50% my fault? Is that the way clin. neg. is conducted these days? If so, little wonder the NHS is in financial trouble. It has to defend everything to try to flush out the bogus claims, or the bogus elements of otherwise genuine claims at least.

    Until I read what you wrote I was critical of NHS lawyers for defending what they do. I have now revised that view. They must.

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