PART 36 AND THE ASSESSMENT OF COSTS: CLAIMANT ALLOWED TO RAISE THE ISSUE LATE, BUT TO NO GREAT AVAIL

In Best v Luton & Dunstable Hospital NHS Foundation Trust [2021] EWHC B2 (Costs) Costs Judge Leonard allowed a claimant to raise an argument as to Part 36 benefits following an offer in assessment proceedings.  However it was held that the claimant was not entitled to any Part 36 advantages.

“… my conclusion is that the costs of the detailed assessment proceedings do not, for the purposes of CPR 36.17(4), fall within “any issue that arises in the claim”.  The Claimant’s submission that it does seems to me to be inconsistent with the way in which CPR 36 has been interpreted since well before 2013. It is also, in my view, inconsistent with the full provisions of CPR 36.17. To accept it would be to override my obligation to interpret the Civil procedure rules in accordance with the overriding objective.”

THE CASE

The claimant’s costs in a clinical negligence action were compromised when the defendant accepted a Part 36 offer out of time.   The only matter outstanding was the costs of the assessment process itself.  An assessment took place and the figure reached was £51,119.80.

Shortly after the hearing the claimant’s counsel stated that they wished to raise another issue in relation to claiming the benefits of a Part 36 offer.  The hearing was taking place remotely and had finished early. However the defendant’s representative could not be contacted. After contact was made it was agreed that this issue should be raised in written submissions.

SHOULD THE CLAIMANT BE ALLOWED TO RAISE THIS ISSUE AFTER THE HEARING ?

It was held that the claimant should be able to argue the Part 36 benefit point despite the hearing having ended.

5.                  Some of the Defendant’s submissions query why the part 36 issue was not raised during the hearing, rather than after its conclusion. In fact Ms McDonald did explain in the reconvened hearing that she had omitted to address the point. With hindsight I realise that the fact that this was a simple oversight may not have been as clear to Mr Stott as it was to me, because he had not been present when Ms McDonald initially explained to me why she was requesting that we reconvene, but that was the essence of what she was saying.

6.                  Mr Clegg for the Defendant suggests that the Claimant should have filed a formal application to raise a new issue after the conclusion of the hearing. He refers to Re L and B (Children) [2013] UKSC 8, in which the Supreme Court considered the appropriate exercise of a judge’s power to change a decision at any time before the relevant order is perfected, and Vringo Infrastructure Inc v ZTE (UK) Ltd [2015] EWHC 214 (Pat), in which Mr Justice Birss (applying the principles of Re L and B and Ladd v Marshall [1954] 1 WLR 1489, [1954] 3 All ER 745 , CA) refused a defendant’s application, after judgment had been given but before an order was sealed, to amend its pleading, rely on new evidence and reopen the trial.

7.                  Mr Clegg argues that the principles applied by Birrs J, as is evident from his judgment, apply equally to the introduction of a new argument. The Part 36 argument could have been raised, with reasonable diligence, during the hearing. It is also disproportionate to raise the issue post-hearing, given that the value of the new argument in financial terms is (assuming that the Claimant seeks only a 10% uplift on the costs awarded, pursuant to CPR 36.17(4))) around £5,800. The consequence of this is he says that the Defendant did not achieve the final resolution of the case which it had a right to anticipate, but had to put up with the delay and additional cost necessarily attendant on written submissions and a written decision.

8.                  For the Claimant Ms McDonald relies upon the “slip rule” at CPR 40.12. She argues that the omission to raise the Part 36 offer was quickly identified and the matter brought back to a hearing within the original allocated time. It is not uncommon for parties to leave the courtroom, notice an error or omission, and go back to the court for the error or omission to be rectified. There is no real prejudice to the Defendant, in drawing the court’s attention to the fact that the Claimant had beaten her own Part 36 offer.

9.                  The first point to make is that I do not believe that I am being asked to change my mind about a decision I have already made. The summary assessment of the Claimant’s costs is undisturbed at £58,119.80. In the reconvened hearing I was asked only to address the consequences of that assessment in the light of the Claimant’s Part 36 offer, a point that had not previously been put to me.

10.              Given that Ms McDonald was able to raise her point within the time originally allocated for the hearing, I think it is fair to approach the issue on the basis that she did in fact do so before the hearing ended. In other words, the hearing had not quite ended when we thought it had, because not all the issues had been addressed. As Ms McDonald says, the situation is really not very different to the parties, having left for a short period, re-entering the courtroom within the time allocated for the hearing to pick up a point that had been overlooked.

11.              If I am wrong about that, however, I am sure that the Claimant should be able to raise the Part 36 point, for these reasons.

12.              On the basis that the hearing had ended, I am not sure that either Re L and B (Children) or Vringo Infrastructure are entirely on point. Like Birrs J in Vringo Infrastructure, I am asked to consider something new, but the Claimant is not in this case seeking to amend her case or introduce new evidence. She is simply asking me to entertain a point that she should have raised, but omitted to raise, before the hearing was over.

13.              For that reason, I do not think that the principles set out in Ladd v Marshall, which have to do with the admission of new evidence on appeal, have any real bearing. I am however assisted, as was Birrs J, by the principles identified by the Supreme Court in Re L and B (Children). In essence I must apply the overriding objective to deal with the case justly, considering relevant factors such as whether any party had, in consequence of the Claimant’s omission, acted to that party’s detriment or otherwise been prejudiced.

14.              It seems to me that the simple answer to that is “no”. As Ms McDonald says, the oversight was spotted promptly and the hearing was reconvened within its original time slot. The reason that the point went to written submissions, rather than been dealt with on the spot, was that I thought that in order to present their case properly both parties needed an opportunity to understand and respond to the logic of my unreported decision in Bourne, and time did not allow for that. That would have happened even if Ms McDonald had raised the point immediately following the summary assessment.

15.              In fact the only material difference caused by the Claimant’s omission is that the Defendant has been given an opportunity to argue, albeit unsuccessfully, that the Claimant should not now be able to raise the point. There is no prejudice to the Defendant in that. It seems to me that in all the circumstances, the application of the overriding objective requires that the Claimant be allowed to raise the matter of her Part 36 offer.

16.              As a footnote I would add that I do not think, strictly speaking, that CPR 40.12 has any application, because that rule is designed to correct errors in orders and judgements that have already been perfected. I did however find it instructive, on reviewing the notes in CPR 40.12 in the White Book, to follow their reference to the observations of Rix LJ and Lewison LJ in Tibbles v SIG plc [2012] EWCA Civ 518, on the subject of the court’s power to change a perfected order, whether under CPR 40.12 or CPR 3.1(7), to remedy an accidental omission of counsel or solicitor to ask for something which ought to have been provided for.

17.              Evidently both R LJ and Lewison LJ thought that it could be appropriate to do so provided that an application to do so was made promptly, for example by the following day. If that is right where a hearing has concluded and an order has been perfected, it must be right where a hearing has concluded but the order has not been perfected.

THE CLAIMANT WAS NOT ENTITLED TO PART 36 BENEFITS

Having given the claimant permission to raise the point the Costs Judge was against the claimant’s construction of the rules.

35.               I am called upon to interpret the Civil Procedure Rules, and in doing so I am required by CPR 1.2 to give effect to the overriding objective of dealing with cases justly and at proportionate cost.

36.              Thanks to CPR 47.20(7), detailed assessment proceedings are treated as an independent claim. The question I have to decide for present purposes is whether the award and the quantification of the costs of assessment fall, as the Claimant contends, within “any issue that arises in” that independent claim for the purposes of CPR 36.2(3). My conclusion is that it does not, for these reasons.

37.               The first is that before the introduction of the Part 36 regime to detailed assessment proceedings in 2013, it was already possible to make an offer in respect of the whole, or part of, any issue that arose in a claim. The relevant wording appeared at wording of CPR 36.2(2)(d). If the issues arising on the detailed assessment of costs were issues in the claim for the purposes of CPR.2(2)(d), it would already have been possible to make a Part 36 offer in detailed assessment proceedings and it would not have been necessary, in 2013, to make specific provision to introduce the Part 36 regime to detailed assessment.

38.              The necessary implication is that the issues referred to, Pre-April 2013, at CPR 36.2(2)(d) were the issues in the claim itself, which had been determined by the time an order for costs was made. Any award and assessment of costs would follow, as a separate process, once those issues had been determined (whether by agreement or judgment).

39.              The same must be true of CPR 36.2(2)(d). CPR 47.20(7) allowed these detailed assessment proceedings to be treated as an independent claim. The issues in that claim were set out in the bill of costs, points of dispute and replies. They were resolved on the Defendant’s acceptance of the Part 36 offer. The award and quantification of the costs of assessment followed, but they were not issues in the deemed independent claim, all of which had already been resolved.

40.              This conclusion seems to me to be supported by the wording of CPR 36.17(4) itself. The provisions of CPR 36.17(4) are prescriptive. The court must, unless it considers it unjust to do so, order that a claimant (in detailed assessment proceedings, the receiving party) receive all of the listed awards including indemnity basis costs and additional interest on those costs. That envisages a claim, or part of a claim or an issue in a claim, which is in itself capable of conferring an entitlement to costs. In short, it would be what is described at CPR 47.20(7) as an independent claim. The costs of detailed assessment proceedings do not carry their own costs and do not meet that criterion.

41.              That takes me to what seems to me to be a decisive obstacle for the interpretation of the rules contended for by the Claimant. If the Claimant is right then any Part 36 offer made as to the costs of assessment would, on acceptance, result in a further deemed order for costs under CPR 44.9(1)(b). By virtue of Practice Direction 44 paragraph 8.2, that deemed order would be an authority for detailed assessment.

42.              The receiving party would, accordingly, be entitled to draw up another bill to cover its costs of working on the costs of the detailed assessment, and to start a new set of proceedings for the detailed assessment of those costs. To avoid a Default Costs Certificate, the paying party would have to file Points of Dispute. The receiving party could then apply for detailed assessment and, pursuant to CPR 47.20, seek not only “the costs of the costs” claimed in its bill, but the additional costs of the new set of detailed assessment proceedings.

43.              The receiving party could also make yet another Part 36 offer as to the costs of the new detailed assessment proceedings. If the paying party were to refuse to accept that offer, it would be at risk of incurring the additional penalties provided for by CPR 36.17. If it did accept the offer, then the receiving party could start again with another bill claiming “the costs of the costs of the costs”.

44.              As Mr Clegg for the Defendant points out, there is at least the potential for an indefinite cycle of Part 36 offers and new detailed assessment proceedings, each parasitic upon the last. Even one such parasitic set of detailed assessment proceedings would be disproportionate, duplicative and unfair to the paying party. That is not consistent with the overriding objective.

45.              In summary my conclusion is that the costs of the detailed assessment proceedings do not, for the purposes of CPR 36.17(4), fall within “any issue that arises in the claim”.  The Claimant’s submission that it does seems to me to be inconsistent with the way in which CPR 36 has been interpreted since well before 2013. It is also, in my view, inconsistent with the full provisions of CPR 36.17. To accept it would be to override my obligation to interpret the Civil procedure rules in accordance with the overriding objective.