Goodwin v Bennetts UK Ltd

A successful claimant will ordinarily recover the costs of the action although the court accepts only some allegations and reaches an intermediate conclusion between the parties’ competing cases. An issue-based reduction may be inappropriate where the successful alternative case fell within the pleadings, was sufficiently identified before or during trial, and caused neither surprise nor prejudice.

Parties must state their primary and fallback cases clearly. In deciding costs, the court may also consider whether the unsuccessful defendant could have protected its position by making a suitable settlement offer. A defendant which makes no offer and requires the claimant to proceed to trial and appeal to recover damages may remain liable for all costs on the standard basis.

The claimant brought a personal injury claim arising from habitual keyboard work during her employment by the defendant. Her primary case was that the work caused tenosynovitis. The trial judge, His Honour Judge Dixon in Portsmouth County Court, rejected that diagnosis.

The Court of Appeal upheld the rejection of tenosynovitis but found that the defendant’s breaches from November 2002 exacerbated an underlying condition, causing attributable pain and suffering from January 2003. The claimant therefore recovered £2,915.90 inclusive of interest.

The remaining issue was whether the claimant should recover the costs below. The defendant argued that she had succeeded on an unpleaded alternative case raised too late at trial. The claimant maintained that exacerbation was sufficiently apparent and that the defendant could have protected itself by making an offer.

1. The appeal was allowed in part. The defendant was ordered to pay the claimant’s costs both below and on appeal, to be assessed on the standard basis if not agreed. The court declined to make either an issue-based order or a reduction from the normal costs order.

2. Per Jackson LJ, with whom Dyson LJ and Sir Anthony Clarke agreed, the appellate finding of exacerbation fell within the claimant’s pleadings. Most allegations of negligence and breach of statutory duty were not limited to a particular period. A finding that breach began in November 2002 and caused attributable suffering from January 2003 was a commonplace intermediate conclusion in personal injury litigation, although it did not correspond completely with either party’s primary case.

3. The defendant had adequate notice of the alternative case. The medical reports disclosed a dispute between causation of tenosynovitis and aggravation of an underlying condition. The claimant’s opening note expressly identified aggravation as an issue, and her witness statement described the recurrence of symptoms after returning to work. Evidence elicited during cross-examination strengthened that case. The defendant neither sought an adjournment nor demonstrated prejudice or surprise.

4. Claimants must nevertheless state their cases clearly and disclose any fallback position. Parties should put their cards on the table. That requirement was satisfied here because the material served before trial and the conduct of the trial gave sufficient notice of the exacerbation case.

5. The claimant’s failure on some allegations did not justify reducing her costs. She obtained damages only after proceeding to trial and appeal. The defendant could have protected itself against the costs consequences by making a modest Part 36 or other settlement offer, but made none.

6. Paragraphs 1 and 2 of the County Court order dated 4 January 2008 were set aside. Judgment was entered for the claimant for £2,915.90 inclusive of interest.

1. Court of Appeal (Civil Division): In [2008] EWCA Civ 1658, allowed the appeal in part, set aside paragraphs 1 and 2 of the order dated 4 January 2008, entered judgment for the claimant for £2,915.90 inclusive of interest, and awarded her the costs below and on appeal.

2. Portsmouth County Court: His Honour Judge Dixon rejected the claimant’s diagnosis of tenosynovitis. The claimant had recovered no damages under the order from which she appealed.