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What is Unjust? JLE v Warrington & Halton Hospitals NHS Trust Foundation [2019] - Andrew Cousins, Counsel at DWF Advocacy Ltd

26/09/19. The appeal arose from a Detailed Assessment of costs following settlement of a claim for monetary damages. The background to the appeal was uncomplicated in that the Claimant served a bill of costs for £615,751 and subsequently made a Part 36 offer to accept £425,000.

On assessment, the Claimant beat her Part 36 offer by £7,000. At first instance, Master McCloud awarded the Claimant the benefits provided for in CPR 36.17(4)(a)-(c) ie. enhanced interest and costs on the indemnity basis, but held that it would be unjust to award the 'additional amount' under CPR 36.17(4)(d).

In reaching her Judgment the Master found that (1) the very small margin by which the offer was beaten, relative to the size of the bill; (2) the fact that the bill was reduced by a significant amount leaving it difficult for the Defendant to know where to pitch its offer; (3) the size of the 10% additional amount relative to the margin by which the offer was beaten, meant that it was disproportionate and unjust to award the Claimant the additional amount.

The Claimant appealed the decision not to award the additional amount in respect of the decision not to award the Claimant the additional amount pursuant to CPR 36.17(4)(d).

Issues and Judgment

The appeal was allowed by Stewart J who found that none of the Master's reasons were admissible. Whilst Stewart J agreed with Master McCloud that the Court has jurisdiction to find it unjust to award some, but not necessarily all of the benefits of CPR 36.17(4), he did not consider that the Claimant should be deprived of the additional amount in this case. Adding that it would be unusual for the circumstances to yield a different result for only some of the orders envisaged in sub-paragraph (4) of CPR 36.17.

The appeal judge held that it was not open to judges to take into account the amount by which a Part 36 offer was beaten when determining whether to award the additional amount. The additional award was not a...

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