Cashman v Mid Essex Hospital Services NHS Trust

Part 36 applies to detailed assessment proceedings through CPR 47.20, including the additional amount under CPR 36.14(3)(d), unless the rules provide otherwise. Where the claimant obtains a result at least as advantageous as the offer, entitlement to the Part 36 consequences arises unless it would be unjust to make the particular order. The court must consider all the circumstances, including the matters specified in CPR 36.14(4). A substantial reduction in the bill is not, without more, a sufficient reason to refuse the additional amount where the offer was lower than the assessed costs. The discretion is not unfettered, and the prescribed percentage cannot be replaced by a different calculation merely because that appears fairer.

The claimant appealed from an order of Senior Costs Judge Master Gordon-Saker dated 21 October 2014. The Master assessed the claimant’s costs at £173,693.78, exceeding the claimant’s Part 36 offer of £152,500. He awarded interest and indemnity costs under CPR 36.14(3)(a) to (c), but refused the additional amount under CPR 36.14(3)(d), considering the substantial reduction from the bill rendered that award unjust.

The appeal concerned whether CPR 36.14(3)(d) applied to detailed assessment proceedings, including proceedings under the former CFA regime, and whether the reduction in the bill justified refusing the prescribed additional amount.

1. Appeal allowed. The claimant was entitled to an additional amount calculated under CPR 36.14(3)(d).

2. By CPR 47.20, Part 36 applies to detailed assessment proceedings with specified modifications. Nothing in the rules excluded cases conducted under the former CFA regime. CPR 36.14(3)(d) therefore applied.

3. Where the condition in CPR 36.14(1)(b) is met, the court must order the claimant’s entitlement to each consequence in CPR 36.14(3), unless, having considered all the circumstances under CPR 36.14(4), it would be unjust to do so. The discretion is not unfettered. The court retains discretion over the percentage of interest under CPR 36.14(3)(a) and (c), but not generally over whether the prescribed additional amount is payable.

4. The question whether an award would be unjust must be considered separately for each sub-paragraph. A factor may carry different weight in relation to different consequences. The court must consider the terms and timing of the offer, the information available when it was made, and the parties’ conduct concerning information.

5. The Master erred by treating the reduction in the bill as rendering the additional amount unjust. The relevant focus was the reasonable Part 36 offer, not the amount claimed in the bill. No other feature of the bill made the prescribed award unjust. The Master’s approach penalised the claimant for making a reasonable offer and was contrary to the purpose of CPR 36.14(3)(d), which was intended to penalise a defendant who failed to accept an adequate offer.

6. On the evidence, and absent the size of the bill, there was no identified reason why the award would be unjust. The claimant was therefore entitled to the prescribed additional amount.

• High Court (Queen’s Bench Division): appeal from the order of Senior Costs Judge Master Gordon-Saker dated 21 October 2014 allowed. The claimant was ordered to receive the additional amount under CPR 36.14(3)(d).