JMX v Norfolk and Norwich Hospitals NHS Foundation Trust

Under CPR 36.17(4)(d), the court has no power to award the additional amount until the case has been decided. A case is decided only when all issues have been determined, whether at one or more trials. Where liability is determined as a preliminary issue, the additional amount cannot be awarded before damages have also been determined. An effective Part 36 offer on liability may nevertheless remain capable of founding an additional award later. The court should avoid making an interim award by reference only to costs where that would exhaust the single available order under the rule and prejudice a protected party’s later entitlement.

The claimant had succeeded at a liability-only trial and had obtained a result at least as advantageous as his Part 36 offer to accept 90% of a full damages award. In the earlier ruling, [2018] EWHC 185 (QB), the court held that the claimant was entitled to the benefits under CPR 36.17(4).

The defendant subsequently argued that no additional amount could yet be awarded because there was no sum awarded to the claimant. The claimant argued that the issue was res judicata and that the liability decision amounted to a monetary award. The court considered whether CPR 36.17(4)(d) was engaged before damages had been assessed.

1. The issue remained open. Although the defendant should have raised the point earlier, the issue concerned the court’s jurisdiction. Jurisdiction cannot be conferred by consent or default. No order for an additional amount had yet been made, so the court retained flexibility to correct the position.
2. When a case is decided. Under CPR 36.3(e), a case is decided when all issues have been determined, whether at one or more trials. The court therefore had no power under CPR 36.17(4)(d) to award an additional amount after the liability trial alone. A claim for damages for breach of duty is not decided until liability and damages have both been determined.
3. Effect of a liability offer. That conclusion did not mean that Part 36 could operate only on an offer covering the claim as a whole. Such a construction could undermine the purpose of encouraging offers on specific issues, including breach of duty, and serious consideration of them by defendants.
4. Single additional award. CPR 36.17(4)(d) permits only one order for an additional amount in a case. The court left open whether a liability offer could later generate an additional amount calculated by reference to the sum awarded once damages had been determined.
5. Disposition. No additional amount was awarded at that stage. Making an award by reference only to costs could prevent the protected claimant from seeking a later enhanced award if a further damages offer qualified. The issue could be restored to the court if the damages claim were later settled and the parties could not agree the consequences.

The judgment records an earlier substantive ruling on costs in the same proceedings: [2018] EWHC 185 (QB). The present judgment concerned the further ruling on the timing and jurisdiction to award an additional amount under CPR 36.17(4)(d).