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PI and Civil Litigation

Law - practice - procedure

08 JUN 2015

Webb (by her litigation friend Stacey Keira Perkins) v Liverpool Womens’ NHS Foundation Trust [2015] EWHC 449 (QB)

Webb (by her litigation friend Stacey Keira Perkins) v Liverpool Womens’ NHS Foundation Trust [2015] EWHC 449 (QB)
Costs - Proportionate order for costs - Part 36 - Part 44

High Court, Queen's Bench Division

1 April 2015

Saffman J

 Costs orders will be granted with proportionality and the issues in dispute in mind. The costs regime under Part 36 does not preclude the court from taking such an approach.


 The claimant brought a claim alleging the defendant’s negligence in the management of her birth which led to her suffering a Brachial Plexus injury. The claimant’s allegations fell into 2 main parts: (1) that the need for a Caesarean section was indicated on no less than 3 occasions but, negligently, no Caesarean was performed; and (2) that the delivery itself was negligently managed by the midwives as they failed to adopt recognised procedures to deal with the claimant’s injury during delivery. The Judge found for the claimant in respect of the first allegation but not in respect of the second allegation, however the defendant was liable for 100% of the claimant’s damages.

 The claimant had made a Part 36 offer to settle liability on a 65:35 split in the claimant’s favour; the offer was rejected. The claimant obtained a judgment more advantageous than her offer and should therefore be entitled to all of the relevant costs under Part 36. The defendant argued that this would be unjust and therefore it would appropriate for the court to make an issue based or proportionate costs order due to the fact that the claimant had failed on one of her allegations.

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The Judge first found that, in the absence of a Part 36 offer, an issue based or proportionate costs order under Part 44 would have been appropriate. Each allegation was a separate, self-contained, discrete claim which was supported by its own separate expert evidence. The second allegation, it was accepted by the claimant, was weaker than the first allegation but it was still pursued. It was a question of fact and it may be quite right that the court should decide disputed facts and therefore for the defendant to defend the claim. It was therefore reasonable to take the failed point, but the claimant had not succeeded on it. The Judge went on to find that, although Part 36 is a self-contained regime which does not refer to issue based or proportionate costs orders, it was permissible for the court to make such orders if necessary to avoid injustice. The existence of a Part 36 offer did not preclude such an order being made. A costs order was made limited to the percentage of the claimant’s costs which reflected the time expended on the first question.

This case serves as a warning that obtaining a more advantageous award at court than a part 36 offer does not in itself prevent the court from looking at other issues when considering the issue of proportionality.

Adam Dyl & Jodee Mayer, Anthony Gold