Rosemary Chapman v Mid and South Essex NHS

In a clinical negligence claim involving successful and unsuccessful allegations, costs are assessed by considering the claim in substance and identifying the party who was unsuccessful in reality. Success on some issues does not ordinarily justify depriving a claimant of costs where the claim was one substantive action and the unsuccessful issues were properly arguable. A claimant’s offer to accept 90% of damages on a 100% liability basis can be an effective Part 36 offer where the trial structure and correspondence make its scope clear and there is a genuine issue as to split liability. The burden of showing that Part 36 consequences would be unjust is high.

The judgment determined costs following the claimant’s clinical negligence claim. In the liability judgment, the claimant succeeded in relation to examinations by Dr Bopitiya but failed in relation to an examination by an emergency nurse practitioner, Becky Nice. She succeeded on causation in relation to both parts of the claim and no contributory negligence was found.

The court considered the costs order before and after 13 January 2023, the effectiveness of the claimant’s Part 36 offer, and whether Part 36 consequences would be unjust.

1. The claim was, in substance, one claim against a single defendant. The claimant was the successful party in reality, having succeeded on six of seven key issues. Under CPR 44.2, the defendant was ordered to pay her costs before 13 January 2023. Failure on some allegations did not justify an issue-based reduction because the unsuccessful allegations were properly arguable and there was no finding of unreasonable pursuit or deliberate dishonesty.
2. The claimant’s offer to settle liability and causation for 90% of damages assessed on a 100% liability basis was valid for Part 36 purposes. Its scope was clear from the correspondence and pleadings. There had been a genuine prospect of a split-liability finding. Mundy v TUI UK Ltd was distinguishable because its analysis concerned different factual and procedural circumstances.
3. The claimant obtained judgment at least as advantageous as the offer. The defendant failed to establish that applying CPR 36.17 consequences would be unjust. The defendant could have avoided trial by making appropriate admissions or accepting the clarified offer. Indemnity costs were therefore ordered after 13 January 2023, with interest at 5% above base rate from 14 January 2023.
4. Under CPR 44.2(8), the defendant was ordered to pay £685,000 on account of costs and £100,000 on account of damages, within 28 days.