Jones v Ministry of Defence

In assessing costs after trial, the court must first identify the successful party by asking who won in substance and reality. The amount recovered and the outcome of individual issues are relevant but are not necessarily decisive. A claimant may be successful despite recovering substantially less than claimed where the proceedings established the essential claim and it was reasonable to pursue them.

Departure from the general rule that the successful party recovers its costs requires a reason based on justice. Where issues overlap, a percentage reduction or order limited to a period is generally preferable to an issue-based order, subject to practicability.

The claim was a clinical negligence action concerning delayed diagnosis and consequential injury. Judgment on liability and damages had been handed down on 22 June 2020, with costs reserved for written submissions.

The claimant recovered substantially less than the damages claimed. The defendant relied on Medway Primary Care Trust v Marcus [2011] EWCA Civ 750 and sought 90% of its costs, alternatively an issue-based order. The claimant argued that he was the successful party and should recover his costs before the effective date of the defendant’s Part 36 offer. The issues were who was successful, whether justice justified departing from the general rule, and what form the order should take.

1. Outcome. The claimant was entitled to recover 60% of his costs for the period before 6 May 2020. The defendant was entitled to its costs from 7 May 2020 onwards under the accepted consequences of its Part 36 offer.
2. Successful party. The court applied the substance-and-reality approach described in Roache v Newsgroup Newspapers Ltd [1998] EMLR 161. The claimant succeeded because the trial established that delayed diagnosis caused compensable damage. The substantially lower award did not alter that conclusion. The case was materially different from Medway Primary Care Trust v Marcus [2011] EWCA Civ 750, where the principal claim had failed entirely and the small award concerned a claim raised only at the end of the trial.
3. Departure from the general rule. Under Civil Procedure Rules 1998, rule 44.2(2), the successful party ordinarily receives its costs. Applying F&C Alternative Investments [2012] EWCA Civ 843, departure required a reason based on justice. The defendant’s expert evidence had substantially reduced the damages, making an order for all the claimant’s costs unjust.
4. Form of order. The court declined an issue-based order under rule 44.2(6)(f). The issues of negligence, causation and loss overlapped, making detailed assessment disproportionate and difficult. Consistently with Multiplex Constructions [2008] EWHC and rule 44.2(7), a percentage order was practicable and appropriate. The claimant therefore recovered 60% of the pre-Part 36 costs.

The judgment concerns costs following the substantive clinical negligence judgment handed down on 22 June 2020. No appellate history is stated.