90% Part 36 Offer was a genuine attempt of settlement

JMX (A child by his Mother and Litigation Friend, FMX) v Norfolk and Norwich Hospitals NHS Foundation Trust [2018] EWHC 185 (QB)

On 7th February 2018 the High Court has ruled that a Part 36 offer to settle a clinical negligence claim for 90% of its value was a genuine attempt to settle the matter and beating that offer led to the Claimant obtaining the Part 36 advantages.

The substantive judgment in this case relates to the brain damage sustained by a boy when he was born in 2008. The Claimant won the liability-only trial, with damages to be agreed or assessed in due course.

On 6 October 2017 the Claimant’s advisers put forward a Part 36 offer on his behalf to accept 90% of the damages to be agreed or assessed in due course. The offer expired on Friday, 27 October, effectively one working day before the Trial began.

This offer was not accepted by the Defendant and therefore the Claimant sought costs consequences in accordance with CPR 36.17 on the basis that he has achieved an outcome at least as advantageous as his Part 36 offer.

The Defendant argued that the offer was not a genuine attempt to settle the case because it did not reflect any realistic assessment of the risks of the litigation.

That argument was rejected by Mr Justice Foskett, who said “When an offer to accept 90% is made in a case such as this, I would regard it as a case where the Claimant’s team regard the claim as very strong, but is prepared to offer a modest discount to secure absolute certainty of obtaining substantial compensation. That is what Mr Nolan [Counsel for the Claimant] says prompted the offer in this case and I have no reason to doubt that that was so”. He added that if he was to accede to the Defendant’s submission it could have the effect that a 90% settlement in the clinical negligence sphere would no longer be offered or accepted.

Further, Mr Justice Foskett stated “In my view, this was properly to be regarded as a genuine offer of settlement and I do not consider that it militates against ordering the normal consequences for the Claimant having achieved more than his Part 36 offer”.

In conclusion Foskett J said “There was, in the present case, a decision not to make any offers by the Defendant, but, whilst the case went against the Defendant, as I have said, there was nothing unreasonable about the decision to contest it. The point, of course, is that now a judgment has been given, the wisdom of accepting the 90% offer is clear”.

Tanya Bland