Cross-claims

Parkes v Martin [2009] EWCA Civ 883

Following a road traffic accident, both parties had intended to issue personal injury claims, however, the claimant did so first. The parties formally agreed that the issue of liability would be determinative of the claimant’s claim and of the defendant’s intended claim, without the need for the defendant to issue separate proceedings or a counterclaim. The judge determined that the claimant should recover 35% of the value of his claim and that the defendant 65% of the value of his. The claimant appealed against the judge’s decision that he should recover only 35% of his costs in line with the ruling on liability, submitting that it was not open to the judge to consider the notional cross-claim as there was no real evidence of it before him save for the defendant’s fleeting reference to having ‘a claim by the wayside’, and that, as liability had been established in the claimant’s favour, albeit in a reduced fashion, he was entitled to all of his costs. The defendant conceded that if the reduction had been made solely because of the claimant’s contributory negligence, the decision was wrong.