This case concerned birth injury: brachial plexus injury resulting from shoulder dystocia. The allegations of negligence were: (a) failure to perform caesarean section during labour; (b) the conduct of the vaginal delivery. At trial C succeeded on the first but not the second allegation. C was entitled to full recovery of her injury and her loss
C had made an offer based on 65% of full value. The issue concerned the operation of Part 36 and Part 44 and how they interrelated. The judge excluded costs referable to the second allegation.
C appealed that C should be awarded all costs and at an enhanced rate after the Part 36 “effective date”.
Costs before the effective date:
“…the judge could not properly have deprived the Claimant of her costs relating to the second allegation, essentially for the reasons put forward by the Claimant. Although the two allegations related to separate parts of the Claimant’s mother’s labour, they were part of one event, namely the Claimant’s birth. Her injuries were such as would not in general be caused without negligence in the care of her birth.” (paragraph 24)
Costs after the effective date:
“…Part 36 is now a self-contained code…” (paragraph 36)
“In deciding what costs order to make under 36.14, the Court does not first exercise its discretion under Part 44. Its only discretion is that conferred by Part 36 itself…” (paragraph 37)
“It follows from the above, and in particular that Part 36 is a self-contained code, that the discretion under 36.14 relates not only to the basis of assessment of costs, but also to the determination of what costs are to be assessed. I agree with the Judge that Part 36 does not preclude the making of an issue-based or proportionate costs order. However, a successful claimant is to be deprived of all or part of her costs only if the court considers that would be unjust for her to be awarded all or that part of her costs. That decision falls to be made having regard to “all the circumstances of the case”. In exercising its discretion, the Court must take into account that the unsuccessful defendant could have avoided the costs of the trial if it had accepted the claimant’s Part 36 offer, as it could and should have done.” (paragraph 38)
Conclusion:
“…the Defendant to pay all of the Claimant’s costs, such costs to be on the indemnity basis from the effective date.” (paragraph 40
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