Part 36 or Calderbank letter?

(1) Medway Primary Care Trust (2) Ashiq Hussain v Sebastian Marcus [2011] EWCA Civ 750 29 June

The claimant commenced proceedings alleging clinical negligence resulting in his left lower leg having to be amputated. The defendants admitted breach of duty but denied causation. General damages were agreed at £525,000. Shortly before the trial as to liability, the appropriate quantum of the claim was agreed as being £525,000. At trial the issue of causation was decided against the claimant but he was awarded damages of £2,000 for pain and suffering over a limited period of time relating to the admitted breaches of duty. It was held on appeal by a majority that the £2,000 recovered did not constitute vindication for the claimant. The £2,000 was scant consolation for the claimant whose only real claim was for the amputation. The action was about the cause of the amputation and the costs were spent in advancing and defending that. The defendants were therefore the successful parties and so the starting point should be a costs order in their favour. There should then be a reduction for the fact that the claimant did succeed to a very small extent; the fact that the trust did not concede liability until a very late stage and as the trust’s case as to breach of duty was not withdrawn until just before trial. The fact that there was no offer made under CPR Part 36 was not a ground for a reduction but it was relevant that the defendants had not written a Calderbank letter offering, say, £3,000 plus costs proportionate to the recovery. However, the real claim failed and no rational person would have issued the proceedings which were issued to recover only £2,000. The claimant was therefore ordered to pay 75% of the defendants’ costs. Jackson LJ dissented on the grounds that the defendants should have made a Part 36 offer and that the although the claimant had a good claim the defendants’ refused to pay anything.