Vanessa Cashman summarises this recent clinical negligence case on split liability Part 36 offers, which provides useful insight and clarification following the judgment on this issue in the personal injury case of Mundy v TUI UK Ltd [2023] EWHC 385.
Facts
C brought a claim against the Trust for attendances on the following dates:
24 December 2009 at Southend University Hospital;
30 September 2010 at Southend;
9 March 2017 at Basildon University Hospital.
C made a part 36 offer on 22 December 2022 for 90% of the damages to be assessed. The relevant period ended on 13 January 2023.
At a liability-only trial in May 2023, the claim arising out of the first two attendances were successful; the third was not. See the judgment for details of the claim ([2023] EWHC 1290 (KB)) but the basic facts were that C attended hospital on the above three occasions on which various clinicians failed to diagnose a prolapsed thoracic disc at T11/12. Despite surgery on 30 March 2017, C remained paraplegic. She alleged that this was the consequence of the delay in diagnosing the prolapsed disc.
D denied liability and also argued that C had contributed to her injury by failing to attend hospital on 15 March 2017. The argument was dismissed in a number of ways.
C argued that she should be entitled to her costs and that the part 36 offer was effective. D argued that there should be no order as to costs and that the offer was not effective.
D’s arguments
D argued that the claims were originally against two separate Trusts, which had then merged. The claims related to events which occurred 7 years apart. Thus the claims were, in effect, two separate claims and C should recover her costs in the successful claim but should pay the costs of the unsuccessful one. These cancelled each other out such that the appropriate order should be no order as to costs.
The part 36 offer was not effective, pursuant to Mundy v TUI UK Ltd [2023] EWHC 385. In Mundy (a personal injury claim) it was found that liability as not a distinct or severable issue capable of being given monetary value and it was artificial to attempt to fit the 90/10 liability offer into the part 36 scheme. Here, D said, there was no realistic possibility of a split liability order (as the argument on contributory negligence was potentially not effective in relation to the successful allegations, it post-dating the negligent treatment by seven years) and therefore the 90/10 was not an offer to settle the claim or quantifiable issue in the claim.
The findings
The Trusts had merged less than one month after the claim was commenced and the Defendant had therefore been a single entity throughout the life of the claim. Despite the time gap, different factual disputes and different expert disciplines required for the allegations relating to 2010 against those relating to 2017, they were not separate claims.
C was successful on six issues out of seven. C was therefore the successful party, it not being “unusual for a claimant to succeed on some but not all allegations, particularly in a personal injury case” (Webb v Liverpool Women’s Hospital NHS Foundation Trust [2016] EWCA Civ 365). Therefore the starting point was that C should have her costs. There was no reason to depart from this in circumstances where C’s claim against Basildon (the 2017 allegation) was not unreasonably pursued.
Mundy was distinguishable as the claimant in that case had made both a 90% offer and an offer of £20,000. D offered £4,000. C was awarded £3,800 and argued that although he had not beaten D’s monetary offer he had beaten his 90% offer. This was not that case as mixed offers on liability and quantum had not been made.
Here, there was a genuine prospect of a finding on split liability as between the parties in the case. D maintained the contributory negligence argument at trial and it was dismissed after consideration of the evidence.
C’s 90/10 offer, when clarified (arguably unnecessarily, Hill J said) made plain that the basis of the 100% damages was that but for the negligence C would have been neurologically normal. Hill J therefore found that Mundy was further distinguishable because the manner in which the 90/10 offer applied to the causation issue was reflected in the liability judgment.
This author assumes that what is meant here is that because C had won outright on causation and proven that she would have been neurologically normal, she had beaten her 90% offer which would have reflected the scenario that even with timely treatment she would have had some neurological deficit.
The offer was therefore effective and it was not unjust for the usual consequences to apply. Hill J awarded 5% over the base rate in relation to CPR 36.17(4)(c).
Comment
This case ameliorates some of the consternation generated by Mundy that 90/10 offers in personal injury cases are not effective, unless there is a realistic possibility of there being a split liability outcome. Hill J in this case said she did not consider that Collins Rice J in Mundy was holding that part 36 consequences cannot flow from such offers made in different factual circumstances from those before her. Her analysis, Hill J said, was based on the difficulty of comparing monetary offers with liability offers of this kind.
This must be right: huge numbers of clinical negligence cases are settled on a percentage basis to reflect litigation risk on both sides, to avoid the costs of trial and to achieve certainty for the parties. A significant proportion of those cases will settle by way of part 36 offers. Were Mundy to have the effect that split liability offers in cases in which there is no prospect of a split liability outcome (which will include the overwhelming majority of clinical negligence cases) are not valid, this would have extreme consequences and wide-reaching ramifications indeed.
The case is also succour for claimants who win on some but not all allegations and a reassuring reminder that the costs of losing on those allegations (if properly made) will not, prima facie, be in jeopardy.
For detailed consideration of Mundy, please see the post by Andrew Roy KC on the 12KBW costs litigation blog.
Clinical Negligence Law 