Hamed v Mills & Anor

Successful claimants ordinarily recover their costs from liable defendants in proportions reflecting the defendants’ substantive liability. A Part 36 offer directed to one defendant does not justify imposing indemnity costs on a co-defendant. The offeror should bear the additional difference between standard and indemnity costs attributable to that offer. Non-Part 36 offers may be considered when making costs orders, but an unreasonable failure to accept them does not automatically require an adverse order. The court must assess the likely costs saved and the circumstances of the case as a whole. Where a defendant concedes liability during trial, its liability for subsequent claimant costs may cease at the time of concession, while costs incurred earlier that day remain recoverable.

The judgment concerned consequential costs orders following the court’s earlier finding that Dr Peter Mills and Tottenham Hotspur Football Club were liable for the claimant’s severe injuries, with liability apportioned 30% and 70% respectively. The claimant had made a Part 36 offer to Dr Mills, which was not accepted or beaten. Dr Mills had also made non-Part 36 offers to the Football Club concerning contribution and apportionment. Disputes remained about abandoned allegations, the effect of those offers, the time at which Dr Mills’ costs liability ended after conceding liability, and the liability of the third-party doctors to indemnify the Club.

1. Costs between the claimant and defendants. The claimant had succeeded against both defendants. The usual rule therefore applied: the defendants were liable for the claimant’s costs, apportioned between them according to the substantive liability division of 30% and 70%.
2. Part 36 offer. Dr Mills had failed to accept the claimant’s offer, which was not beaten at trial. His liability for the claimant’s costs from 18 December 2014 was consequently on the indemnity basis. The Football Club was not liable for indemnity costs merely because the offer had been made to Dr Mills. Dr Mills was liable for the difference between the Club’s standard-basis share and the corresponding indemnity costs.
3. Non-Part 36 offers. Offers made by Dr Mills to the Club could be taken into account under CPR Part 44.4(3)(a), as explained in French v Groupama Insurance Company Limited [2011] EWCA Civ 1119. Although the Club’s failure to accept the offers was unreasonable, the costs that would have been saved were speculative. Considering the whole circumstances, no adverse costs order was made on that account.
4. Abandoned claims. Earlier case-management orders had already addressed the costs of several abandoned allegations. It was neither just nor appropriate to impose further costs on the claimant or Dr Mills for the Club’s separate litigation arrangements.
5. Concession of liability and final orders. Dr Mills’ liability for the claimant’s liability costs ended at 11 am on 5 February 2015, when he conceded liability. Costs incurred before that time on the same day remained recoverable. The third parties were ordered to pay and indemnify the Club for the specified damages, interest and costs. Permission to appeal against the liability apportionment was refused.