JBX v Frimley Health NHS Foundation Trust (Costs)

Under Civil Procedure Rules 1998, r. 44.2, the unsuccessful party generally pays the successful party’s costs. Losing one or more issues does not, without more, justify reducing an overall winner’s costs. A different order may be appropriate where the winner lost the principal argument on which the proceedings substantially turned, after the court weighs all relevant circumstances. That assessment includes the parties’ conduct, the costs attributable to the disputed issue and their settlement offers. A defendant that makes no sufficient Part 36 offer cannot expect the costs protection such an offer could provide, but that omission remains one factor in the overall discretion.

JBX, acting through his mother DBX as litigation friend, had brought a damages claim against Frimley Health NHS Foundation Trust. In the earlier merits judgment, [2026] EWHC 2294 (KB), the Trust succeeded on the proposed domiciliary-care arrangements, while JBX succeeded on his lost-years claim and obtained substantial damages and periodical payments.

At this consequential hearing, the parties had agreed quantum and the reverse indemnity. They disputed costs: JBX sought his costs on the standard basis, while the Trust argued for 75 per cent of costs up to 17 February 2026 and no order thereafter. The central issue was whether the Trust’s success on the principal dispute about future care and accommodation justified departing from the usual costs rule, and what weight to give the parties’ conduct and offers.

1. The Trust was ordered to pay 85 per cent of JBX’s costs on the standard basis, subject to detailed assessment if not agreed. JBX was the successful party for the general rule in r. 44.2(2)(a): his damages were assessed at £4,341,302.86, together with substantial periodical payments. The court nevertheless had discretion to make a different order.

2. A successful party’s loss on some issues is not usually enough, by itself, to justify depriving that party of part of its costs. The position may differ where the claimant loses the principal argument on which the proceedings substantially turned. Here, the greater part of the eight-day trial concerned whether the proposed domiciliary-care arrangements met JBX’s reasonable needs. The Trust succeeded on that issue, while JBX succeeded on the lost-years claim. The court considered the general approach in Fox v Foundation Piling Limited [2011] EWCA Civ 790 and Welsh v Walsall Healthcare NHS Trust [2018] 5 Costs LR 1025.

3. The court weighed all the circumstances. The Trust’s position on future care became clear when it served its Counter Schedule and expert evidence on 13 February 2026, by which time considerable expert costs had already been incurred. JBX’s letter of 17 February did not prevent the parties from attending a settlement meeting or continuing negotiations. It was reasonable for JBX to take the domiciliary-care option to trial, given supporting expert evidence. Other heads of loss were not agreed until shortly before trial, and the lost-years claim remained disputed until the end. The Trust made no Part 36 offer; its other offers came shortly before trial, after much of the costs had been incurred. The parties’ conduct criticisms carried little weight because neither side identified meaningful resulting costs.

4. Taking those matters together required a broad-brush assessment. The appropriate order was payment of 85 per cent of JBX’s costs. No payment-on-account application was made, and no further order was necessary.