Omar Elbanna v Tom Clark

A decision hearing is not adjourned merely because parties later seek to agree consequential orders. Where judgment is handed down without an adjournment and no permission application is made, the lower court is no longer seized of the matter and cannot retrospectively extend time or grant permission to appeal.

Part 36 offers must be construed in the context of the pleadings and the issues in dispute. An offer referring generally to liability may cover breach and causation, and will be ineffective to trigger Part 36 consequences where its precise scope remains materially uncertain.

This supplementary judgment concerned consequential matters following the court’s judgment on liability and causation in the claimant’s personal injury claim. The defendant had filed an appellant’s notice in the Court of Appeal after judgment was handed down, but had not applied to the trial judge for permission to appeal or sought an adjournment of the decision hearing.

The court considered jurisdiction to extend time and grant permission, the construction and effect of the claimant’s Part 36 offer, disclosure of a missing match recording, payment on account of costs, costs assessment and amendment of the defence.

1. Jurisdiction and permission to appeal. The hand-down on 20 March 2024 was the decision hearing. The defendant’s email did not clearly seek an adjournment for the purpose of making an application for permission to appeal. The hand-down proceeded, no application was made within the relevant period, and the defendant instead filed directly in the Court of Appeal. Applying the guidance in McDonald v Rose, the lower court therefore no longer had jurisdiction to extend time or determine permission. The applications were refused on that basis.
2. If that conclusion was wrong, permission to appeal would still have been refused. The collision was avoidable. The defendant deliberately ran at full speed towards the claimant, contrary to rules regulating contact and designed to prevent injury. The claimant was not required to remain stationary or choose a safer movement to avoid the defendant’s breach.
3. Part 36. The offer to settle liability for 75% of damages was ambiguous. In context, liability could include breach and causation, and the claim contained other potential heads of loss. The offer did not identify with sufficient precision whether it concerned the preliminary issues, breach alone, or the whole liability case. It therefore did not trigger Part 36 consequences at that stage, although its effect might fall to be considered after all liability issues were determined.
4. Consequential orders. The claimant was ordered to pay the defendant’s costs of the specific disclosure application. The defendant was ordered to pay £165,000 on account of the claimant’s costs. Detailed assessment was deferred until conclusion of the proceedings. The defence was to be amended in due course to record the causation concession, without an immediate deadline.

The judgment records that the defendant filed an appellant’s notice in the Court of Appeal on 10 April 2024, but the lower court held that it lacked jurisdiction to extend time or grant permission because the decision hearing had concluded on 20 March 2024.