Melvyn Cooksey v Steven Amor (SCCO)

The defendant in this matter made an early Part 36 offer on liability and quantum.  The claimant accepted the split liability offer but rejected quantum. 

The matter proceeded to an assessment of damages hearing and the claimant accepted the defendant’s earlier Part 36 offer.  The claimant refused to pay the defendant’s costs from the day of acceptance onwards under the provisions of CPR Part 36 on the grounds that he was the successful party, and that he was unable to accept the offer when it was made due to not having final medical evidence.

Master Leonard accepted the defendant’s submissions that it was not just to depart from the usual provisions under CPR Part 36 in this matter, and he ordered the claimant to pay the defendant’s costs from the last day of acceptance onwards.

The claimant was a pedestrian who crossed the road in front of a bus.  The defendant was overtaking the bus on his motorcycle and he ran the claimant over.  The claimant suffered a head injury and other orthopaedic and psychological injuries.

The defendant made a split liability offer of 80/20 in the claimant’s favour and a Part 36 offer in the net sum of £25,000.00.  The claimant accepted the offer on liability but rejected the offer on quantum.

The matter then proceeded towards assessment of damages hearing.  One day prior to the hearing the claimant accepted the quantum offer.  It was agreed that the defendant would pay the claimant’s costs up to and including the date of agreement on liability.  Liability for costs after that date was not agreed, and so the parties agreed a Consent Order which provided that the issue of liability for the costs incurred from the date of agreement onwards would be determined by the court at Detailed Assessment if not agreed.

We argued that under CPR Part 36 should apply, and the claimant should pay the defendant’s costs from the date of agreement onwards.  The claimant argued that he was the real winner and that he acted reasonably at the time in rejecting the offer before full investigations were carried out.  He submitted that it would be unjust for him to pay the defendant’s costs because of the stage in the proceedings at which the Part 36 offer was made.

At Detailed Assessment we relied on the case of Matthews v Metal Improvements Co Inc [2007] EWCA Civ 215, and argued that the question for the court was whether it was unjust to make the usual order.  We submitted that the fact that a claimant may have acted reasonably does not mean that the defendant should be deprived of the costs protection from making a Part 36 offer, and that changes in circumstances after the date of a Part 36 offer are contingencies inherent in litigation.  They do not justify a departure from the normal rule.  If a party rejects a part 36 offer he does so at his own costs risk.

In any event we disputed that the claimant acted reasonably in rejecting the part 36 offer and submitted that he was not prepared to appear in court to justify his claim.  Furthermore, the fact that the defendant’s offer was made at an early stage does not make the usual order unjust when the claimant eventually accepts it.

Master Leonard considered the relevant rules within CPR Part 36, and found as follows:

• The defendant could not rely on the provisions of CPR 36.10 as the claimant did not accept the offer in writing.
• CPR 36.14 applied in this case.  CPR 36.14 refers to entry of judgment which is what happened here.  The express terms of the order gave the claimant judgment for the sum of £25,000, exactly the amount of the Defendant’s earlier Part 36 offer.
• As in Gibbon v Manchester City Council, the financial aspect was the primary factor in this monetary claim.  It is not the purpose of litigation to provide a litigant with a clear prognosis for the future, but with compensation for injury.  Accepting a Part 36 offer a year after it is made, with the attendant loss of time, work and a likely element of irrecoverable cost, is not to improve on it in any sense.
• It would not be unjust to apply the normal rule that the claimant pay the defendant’s costs from the expiry of the acceptance period of the Part 36 offer.
• The facts of this case are similar to the facts in Matthews.  There is no question of any late disclosure, late gathering of evidence or any other conduct on the defendant’s part which might justify a departure from the usual rule.  It was open to the claimant to ask for an extension of time to obtain further information prior to acceptance but no such request was made.  Instead, the offer was expressly rejected.
• It was also pertinent that the claimant’s decision to accept the offer was not made because of the receipt of further medical evidence, but because he did not wish to go to court.
• In the circumstances it would be entirely wrong to depart from the Matthews approach.  As in Matthew, whether or not the claimant’s actions were reasonable is not the test.  The defendant is entitled to the protection of the Part 36 procedure and was entitled to make an early offer, for the reasons set out in Matthews.
• The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party.  As to whether the claimant was “successful” we must consider “success” by reference to the specific period over which liability to costs is disputed.  The claimant held out for, but did not achieve, an improvement on what was already on offer.  If anyone was “successful” it was the defendant, who stuck to an offer that was ultimately accepted.

Accordingly, Master Leonard ordered the claimant to pay the defendant’s costs from the day of agreement onwards.