Williams v Devon County Council

Where a Part 36 costs issue depends on the eventual reduction of a certificate for recoverable social security benefits, the Court of Appeal should ordinarily avoid determining the issue before the certificate position is known. This is especially so where the point was not argued below and would require new evidence on appeal. The appeal may instead be adjourned until the outcome of the benefits appeal is established, allowing the court to assess whether the costs issue remains live and can be determined on a proper evidential basis.

The claimant appealed from a decision of His Honour Judge Griggs in the Torquay County Court following a workplace personal injury claim. The judge found the claimant one-third responsible, awarded £9,000 general damages for her shoulder injury, and made a costs order under Part 36 after aggregating the payment into court with recoverable social security benefits.

After judgment, the claimant sought to challenge the assessment of loss of earnings, which might reduce the benefits deduction and increase the net damages beyond the Part 36 offer. The Court of Appeal had to decide whether to determine the substantive and costs grounds before the benefits certificate had been reduced.

1. Appeal adjourned. The court adjourned the appeal because the benefits certificate had not yet been reduced and the eventual figure remained uncertain. The costs issue therefore could not properly be assessed on the evidence presently before the court.
2. The issue had not been argued before the county court judge. Determining it on appeal would require permission to rely on new evidence and would risk deciding an issue without the true factual position regarding the benefits certificate.
3. The court considered it preferable to await the result of the appeal concerning the benefits. If the claimant failed, or succeeded only to an extent that left the issue immaterial, the matter could be resolved without further argument. If the result kept the issue alive, it could then be argued with practical significance for personal injury litigation and the relationship between Part 36 payments and statutory benefit recovery.
4. The court noted that a rehearing application might otherwise have been available under County Court Rule 37(1), but that course could generate further costs and a subsequent appeal.
5. The appeal was stood over to the first open day after 1 October, with notification to the parties two weeks beforehand concerning the state of the benefits appeal. Directions were retained by Lord Justice Latham and costs were reserved.

• Court of Appeal (Civil Division): Appeal from the Torquay County Court was adjourned. The court did not determine the substantive grounds or the Part 36 costs issue pending the outcome of the benefits appeal.