Thursday 24 November 2022
The defendant (D) appeals against paras 5 and 6 of the order of HHJ Sephton QC dated 9/3/22 that D may not set off or enforce the costs order in its favour against the C under CPR 44.14 and that there be no order for the costs of and occasioned by C’s application dated 17/11/21.
The case concerns the interaction of QOCS with CPR 36. In the C’s clinical negligence claim D made early Part 36 offer; liability was admitted before first CCMC; D then incurred substantial costs in defending the quantum claim. C’s claim was overstated. C accepted D’s early Part 36 offer with about 7% of the pleaded value of the claim.
The Court’s permission was required to accept Part 36 offer as deductible benefits had accrued since the date that the Part 36 offer was made. So on the face of the order under appeal is an order specifying the net damages that D must pay to C (£298,156.16).
The Court was also required to determine the parties’ liability for costs: CPR 36.13(4)(b).
The Court determined that D is not entitled to enforce the costs order in its favour. The judge acknowledged that his decision clashes with the policy aims of CPR 36.
D submits that the effect of the judgment is that a C who has grossly overstated value of her claim, who has caused D to run up substantial costs after making a good Part 36 offer and who is entitled to a substantial 6 figure sum for damages does not have to pay D for costs she wrongly caused D to incur.