Part 36 payments and Recovery of Benefits

An appeal against a decision to reduce personal injury damages by one third due to contributory negligence, and a decision to order the claimant to pay costs, was upheld. At issue was a Part 36 payment and a certificate of recoverable social security benefits. The original judge had ordered the claimant to pay costs as she had not bettered the Part 36 payment. However, the Court of Appeal found that the claimant should not have to appeal a certificate of recoverable benefits to make up a shortfall as a result of accepting a payment into court because of the operation of the rules relating to such recovery of benefits. In any case, the decision of the Court of Appeal was that there was not contributory negligence, and therefore costs should have been awarded, but on the issue of recovery of benefits, the court said the issue pointed to a problem arising out of the Social Security (Recovery of Benefits) Act 1997. The court said that the compensator should make a proper assessment of the damages figure and make sure that the Part 36 payment at least covered that amount.