ABC v Barts Health NHS Trust [2016] EWHC 500 (QB) (11 March 2016)

On 30 January 2003 C attended D hospital with dissection of aorta. This was not diagnosed until 20 February 2003 when C underwent surgery. C alleged negligent delay in diagnosis and surgery which resulted in: more extensive surgery, a stroke on 5 April 2006, and being unable to undergo renal transplant.

The majority of the value of the claim was in the stroke.

D admitted the claim in part: breach of duty resulting in the more extensive surgery. D denied causation as the stroke and being unable to have a renal transplant.

Near the time of trial, C accepted D’s part 36 offer of £50,000 for the whole claim.

“…the parties were not able to agree liability for costs which therefore must be determined by this court pursuant to CPR 36.13(5) and it is to that issue that this judgment is directed…” (paragraph 8)

“…C contends that there is no good reason to depart from… the usual order. D submits that having regard to all the circumstances of the case, such an order would be unjust because it fails to reflect that Claimant has failed in relation to the vast majority of his pleaded claim… The issue therefore is whether it is unjust to make the usual order and, if it is, what different order should the court make.”(paragraph 10)

“The difficulty with.. D’s submissions… is that D had the means and opportunity to protect itself in respect of the costs that it was going to have to incur in respect of the causation issue but chose for whatever reason when making its Part 36 offer to frame the offer as a settlement of the whole claim and then subsequently when that offer was not accepted did not make any revised offer excluding causation… there is nothing unjust about making the usual order in the circumstances of this case…” (paragraph 17)