Webb v Liverpool Women’s NHS Foundation Trust  EWHC 449
A proportionate cost order has been awarded in the High Court despite the claimant beating the Part 36 offer and recovering 100% of damages.
The claimant brought action against the Liverpool women’s NHS Foundation Trust for negligence in delivery causing injury to her baby. The claim was in two parts. Firstly, for negligently failing to deliver by caesarean section and secondly for negligently failing to adopt recognised procedures in delivery.
The claimant made a part 36 offer to accept 65% of the damages but this was rejected.
The claimant was successful on the first part of her claim but unsuccessful on the second and was awarded 100% of damages claimed.
When the dispute on costs occurred there was no dispute that the award was more favourable than the claimants Part 36 offer. The claimant argued that consequences of Part 36.14(3) (indemnity costs, interest and enhancement of damages) should apply. The defendant argued that that the consequences of part 36 should be disapplied as they were unjust in the circumstances of the case.
The court held that it was not unjust for Part 36 to apply and went onto consider whether in the absence of a Part 36 offer a proportionate costs order would have been appropriate. In deciding that a proportionate costs order the court held that it would have been appropriate to reflect the failure of the second part of the claim and it was satisfied that the existence of a successful Part 36 offer did not preclude such a cost order.
A proportionate cost order was permitted pursuant to Part 44.2(6) limited to a percentage of her costs reflecting time on establishing the first part of the claim.
The key principle of this case was that a proportionate costs order need not be confined to exceptional cases and the extent to which costs should be disallowed should be left to evaluation by the judges. It is worth noting that the facts in favour of this decision were that each allegation was a separate, discrete claim and that the second part of the claim was weaker than the first and therefore took a significant proportion of time. In conclusion, the protection offered by Part 36 may be limited where the court considers a proportionate cost order is appropriate.