Jayden James Smithstone v Tranmoor Primary School

A claimant’s 90:10 Part 36 offer limited to liability may be a genuine compromise and may engage Civil Procedure Rules rule 36.17. The absence of a monetary figure does not make it ineffective in principle. The rule nevertheless requires an outcome capable of showing that it was at least as advantageous as the offer. A global settlement containing no admission or determination of liability does not meet that requirement. A final order requiring payment may be both a judgment and an order. The unjust exception requires a formidable case; refusal to admit liability or negotiate sooner does not by itself displace fixed costs.

The claimant, a child, brought a fast-track personal-injury claim against his school after his fingers were trapped in a door. He alleged negligence and breach of the Occupiers Liability Act 1957. The claim entered the low-value fixed-costs regime.

Before proceedings, the claimant made a Part 36 offer to settle liability on a 90:10 basis. The parties later agreed a global settlement of £2,650 at the door of the trial. The deputy district judge approved that sum and held that only fixed costs were recoverable. His Honour Judge Baddeley dismissed the claimant’s first appeal, considering himself bound by Mundy.

The appeal concerned whether the approval order was a judgment, whether a liability-only 90:10 offer could engage rule 36.17, whether the settlement was at least as advantageous as that offer, and whether fixed costs would be unjust.

1. Appeal dismissed. The order recorded on Form N24 was both a judgment and an order. It finally required payment of damages and costs in satisfaction of the claim. The respondent’s attempt to treat it as something other than a judgment for Part 36 purposes was misconceived.

2. A claimant’s 90:10 offer on liability is capable in principle of engaging rule 36.17. Applying the reasoning in Huck v Robson [2002] EWCA Civ 398 and the settlement policy identified in Broadhurst v Tan [2016] EWCA Civ 94, the court held that such an offer can be a genuine compromise even without a specified monetary sum. The court expressly overruled Mundy v TUI UK Ltd [2023] EWHC 385 (Ch) insofar as it suggested otherwise as a matter of principle.

3. That conclusion did not assist this claimant. Rule 36.17(4) required the outcome to be at least as advantageous as the 90:10 liability proposal. Liability had neither been admitted nor determined. The global monetary settlement could not therefore establish an outcome more favourable than a 90:10 apportionment of liability. The claimant was consequently limited to fixed costs.

4. The alternative unjustness argument also failed. A refusal to admit liability or engage in earlier negotiations did not itself justify departure from fixed costs. The burden of showing that the usual Part 36 consequences are unjust is formidable, consistently with Webb v Liverpool Women’s NHS Foundation Trust [2016] EWCA Civ 365.

1. Court of Appeal (Civil Division): In [2026] EWCA Civ 13, the court dismissed the claimant’s appeal. It held that a liability-only 90:10 Part 36 offer could be effective in principle, but that the agreed settlement did not establish that the offer had been beaten.

2. County Court appeal: His Honour Judge Baddeley dismissed the claimant’s appeal against the costs decision. He considered himself bound by Mundy v TUI UK Ltd [2023] EWHC 385 (Ch).

3. Sheffield County Court: Deputy District Judge Khan approved a £2,650 settlement on 26 November 2020 and ordered the defendant to pay the claimant’s fixed costs, summarily assessed at £7,114.50.