Webb v Liverpool Womens' NHS Foundation Trust

A successful party may receive only a proportion of its costs where it has failed on a discrete and independent issue. The court must assess the justice and circumstances of the particular case; success on the overall claim does not automatically require recovery of all costs.

A Part 36 offer which is beaten does not insulate the offeror from an issues-based costs order. Part 36 is a self-contained regime, but its consequences may be adjusted where necessary to avoid injustice. Any Part 36 enhancements remain applicable to the costs awarded, unless their application would itself be unjust.

The claimant succeeded on liability in a clinical negligence claim arising from her birth. The court found negligence in failing to perform a Caesarean section at about 13.50 hours, but rejected later Caesarean allegations and the separate allegation that the vaginal delivery was negligently managed.

The claimant had made a Part 36 offer to accept 65% of the damages. The judgment awarded her 100% of damages. The issues were whether the defendant could obtain an issues-based or proportionate costs order despite the successful offer, and whether any Part 36 enhancements should be withheld.

1. Outcome. The claimant was entitled to a costs order limited to a proportion reflecting the time and disbursements attributable to the successful First Limb. The percentage deduction was reserved for determination at a further telephone hearing.
2. Under Day v Day [2006] EWCA Civ 415, the successful party is identified by asking which party is writing the cheque as a result of the judgment. The claimant was therefore the successful party, although that did not determine the extent of recoverable costs.
3. Part 44.2 permits an issues-based or proportionate order. The general rule that the unsuccessful party pays the successful party’s costs is only a starting point. Applying Multiplex Constructions UK Ltd v Cleveland Bridge UK Ltd 2008 EWHC 2280 (TCC), the court considered the separate nature of the two limbs, their distinct expert evidence, the strength and reasonableness of the failed allegation, and the time devoted to it.
4. The existence of a successful Part 36 offer did not prevent a proportionate order. Part 36 is self-contained, but its consequences may be adjusted where necessary to avoid injustice. The court rejected an all-or-nothing approach, relying on the approach in Thinc Group Ltd v Jeremy Kingdom [2013] EWCA Civ 1306 and Davison v Leitch 2013 EWHC 3092 (QB).
5. All applicable Part 36 enhancements were to apply to the costs awarded from the relevant time, including the enhanced interest on damages. The court found no injustice in applying those enhancements to the proportionate costs order.

No appellate history is stated. The judgment records that liability had been determined in an earlier judgment of the same court, with costs reserved.