By a judgment handed down on 30 May 2023 at [2023] EWHC 1290 (KB) (“the liability judgment”) C’s clinical negligence claim in respect of her examinations by D on 24 December 2009 and 30 September 2010 succeeded. No finding of contributory negligence was made on the C’s claim… [1]
C’s claim arising out of her attendance on 9 March 2017, was dismissed. However I concluded that had it succeeded, C would have made out her case on causation and no finding of contributory negligence would have been made. [2]
It is now necessary to resolve the costs issues between the parties, which have been addressed in helpful written submissions from both parties, supported by the relevant authorities and a bundle of inter partes correspondence.
The issues that require determination are as follows:
(1) What general order should be made as to costs. C contends that D should pay her costs of the claim. D’s primary position is that there should be no order for costs; alternatively that D should be ordered to pay only a percentage of C’s costs.
(2) Whether the Part 36 offer made by C on 22 December 2022 to settle her claim for 90% of damages assessed on a 100% liability basis was an effective Part 36 offer.
(3) If it was an effective Part 36 offer, whether it would be unjust in all the circumstances of the case to order Part 36 consequences under CPR 36.17. [4]
this was in substance one claim, the C was in reality, the successful party. [12]
For these reasons I order that:
(i) The Defendant shall pay the Claimant’s costs of the claim for the period up to 13 January 2023, on the standard basis, to be assessed if not agreed;
(ii) The Defendant shall pay the Claimant’s costs of the claim for the period after 13 January 2023 on an indemnity basis; and interest on these costs at 5% above base rate from 14 January 2023 until payment thereof… [52]
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