Story Update – JLE v Warrington & Halton Hospitals NHS Foundation Trust

(Story Update) Part 36 offers -How close is too close? JLE v Warrington & Halton Hospitals NHS Foundation Trust EWHC B18 appealed.

Following on from my previous article on the matter of JLE v Warrington & Halton Hospitals NHS Foundation Trust [2018] EWHC B18 (Costs), an appeal of the decision has now been heard before Mr. Justice Stewart in the High Court following the application brought by the Claimant.

Following submissions by the parties, Mr. Justice Stewart concluded that although Master McCloud was right in considering that the awards under CPR 36.14(4) were severable and that the test of unjustness could be applied to each, it would need to be under unusual circumstances.

In considering Master McCloud’s reasonings, Mr. Justice Stewart considered that it was not for the court to take a view on the amount by which a Part 36 offer has been beaten; the amount must be ‘at least as advantageous’ (as prescribed under CPR 36.17(2)). Even if the offer is equal to or beaten by a small margin, the Claimant is still able to claim the additional sum.

In circumstances where the bill of costs is significantly reduced at assessment, although it may be a reason to not award the additional payment, it must always be considered that the ‘burden to show injustice is a formidable one’

Mr. Justice Stewart went further to consider that CPR 36.17(4)(d) was all or nothing. The full 10% must be awarded unless it is unjust to make the award.

This decision reaffirms the rules under CPR 36 and provides that Part 36 offers are still a powerful tool in costs negotiations.

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