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.