Healthcare Brief: latest decisions October 2022
A roundup of recent court decisions raising issues relating to Part 36 offers; Calderbank offers and judicial discretion, and contempt of court.
No court power to extend ‘relevant period’ of Part 36 offers
Begum (a protected party by her litigation friend, Mr Farid Akhtar) v Barts Health NHS Trust [26.06.22]
The High Court refused the claimant’s application seeking an eight month extension of time to the ‘relevant period’ of the defendant’s Part 36 offer. This was to allow the claimant to investigate quantum, without exposure to Part 36 costs consequences.
Kennedys, representing the defendant relied upon the following arguments:
- The court has no power to require parties to settle a matter or dictate the terms of an offer so it follows that they have no power to ‘change’ an offer, by extending it.
- CPR Part 36 is a self-contained code, falling outside of the general provisions of CPR 3.1(2)(a) to “extend or shorten the time for compliance of any rule, practice direction or court order”. In any event, a ‘relevant period’ is not a rule, practice direction or order.
- CPR 36.12(4) already exists, which allows the court to decide costs consequences following the acceptance of an offer, after expiration of the ‘relevant period'. To allow the court to do so on a pre-emptive basis, is unfair.
Master Thornett found that the court has no jurisdiction to extend the ‘relevant period’, departing from suggestions made, obiter, in RXL v Oxford University Hospitals NHS Foundation Trust .
Contact: Lucy Thornton
Calderbank offers and judicial discretion
Mathieu v Hinds and Anor [23.06.22]
This judgment provides a useful reminder that a Calderbank offer does not provide the clear and unambiguous protection afforded by Part 36 which leaves matters in the hands of a judge when exercising their discretion. This is wide ranging discretion where all factors will be taken into consideration.
In terms of background, the claimant’s claim was pleaded at £33,617,057. At trial (which commenced on 5 February 2022) the claimant was awarded damages of £3,178,741.64.
On 10 December 2021 the claimant made Calderbank offers of a) £10,950,000 with provisional damages in relation to epilepsy and dementia to be determined as a standalone issue, and b) £17,050,000 in full and final settlement. On 11 January 2022, the defendants made a Part 36 offer of £3,125,000 and a Calderbank offer of £3,550,000. On 13 and 19 January 2022, the claimant made further Calderbank offers of £8,050,000 and £7,250,000 in full and final settlement. On 5 February 2022, the defendants made a further Calderbank offer of £4,000,000.
The court noted that the defendants’ offers “were much closer to the final figure awarded by the court than any of the claimant’s” and that overall, there ought to be adverse costs consequences for the claimant. Taking a ‘broad-brush’ approach (under CPR 44.2(4)(c)), the Judge reduced the claimant’s costs by 15% for the period up to 31 January 2022 and by 60% for the period from 1 February 2022.
Claimant found in contempt of court
North Bristol NHS Trust v White [26.05.22]
In this case, the claimant was sentenced to six months imprisonment for contempt of court in respect of exaggerating injuries suffered as a result of alleged clinical negligence for Cauda Equina Syndrome.
The claim itself concerned an alleged delay in referring the claimant (aged 18 at the time of the treatment) for a neurosurgical assessment for Cauda Equina Syndrome on 18 September 2011. A liability only hearing was listed for 22 May 2017, however the parties agreed a 50:50 settlement on liability in advance. The settlement covered causation relating to Cauda Equina Syndrome but not in relation to the extent of the claimant’s symptoms and condition or prognosis arising out of the alleged negligence.
The Honourable Mr Justice Richie found at the contempt of court proceedings that the claimant had made dishonest and misleading statements to four experts in respect of her physical condition.
Contact: Christopher Malla