Medway Primary Care Trust and another v Marcus [2011] EWCA Civ 750

This case involved a medical negligence claim, with the Claimant being awarded £2,000 damages where his claim had initially been valued at £525,000.

The Defendants were ordered to pay the Claimant 50% of his costs of the entire action, and appealed against this decision. They argued that the costs decision was unjust and wrong, and that they should have recovered all or a significant proportion of their costs as, for practical purposes, the claim had failed. The Claimant submitted that he could not have obtained any damages at all without going to court, and that the Defendants were trying to achieve a more favourable result than they would have achieved if they had made a settlement offer.

The Defendants’ appeal was allowed. The relatively small amount of damages recovered by the Claimant did not constitute vindication for him. The issue of causation had in fact been decided against the Claimant, and that issue had been the crux of the action. The majority of the costs were incurred in advancing and defending that issue. The Defendants were, therefore, the successful parties, and the starting point should be a costs order in their favour.

From that starting point, there should be a reduction to take into account the fact that the Claimant did succeed to a very small extent. There should not be a reduction because there was no Part 36 offer made, but it was relevant that the Defendants could have written a Calderbank letter offering £3,000 plus proportionate costs. Ultimately, however, the real claim failed: no sensible party would have issued the proceedings which were issued to recover only £2,000.

The Court ordered that the Defendants should recover 75% of their costs.