Part 36 additional benefits do not apply to detailed assessment proceedings in keeping with the overriding objective…
Sarah Pettit for R Costings Ltd recently produced an article on all the possible benefits that could be gained in pitching a Part 36 correctly, this case interestingly follows on from that specifically looking at the recovery of the benefits in detailed assessment proceedings.
CJ Leonard in Best v Luton & Dunstable Hospital NHS Foundation was asked to consider the additional benefits available to the Claimant following a successful costs Part 36 offer. The Part 36 offer in question was accepted ahead of a listed 2-day clinical negligence detailed assessment by the Defendant, out of time. The hearing was subsequently re-listed for just 2 hours on 10th November 2020 via video. Costs of assessment were concluded at £58,119.80 with interest to be drawn up in an order by the Claimant’s representative.
The hearing ended, shortly thereafter the Claimant’s Counsel emailed CJ Leonard with another issue that had arisen and re-entered the video hearing (during the original time of the listed hearing) but without Defendant’s Counsel. The Claimant wanted to claim the benefits of the successful Part 36 offer; the Claimant was advised to contact the Defendant, who subsequently objected to the new issue being raised following conclusion of the matter and both parties were asked to raise written submissions with consideration of Bourne v West Middlesex University.
There were two issues to address;
1. Whether the Claimant should be allowed to raise the issue post-hearing
Claimant’s counsel quickly addressed the reason for the issue being raised late and accepted that she had simply omitted to address the point and it was an oversight. The Defendant argued that a formal application should therefore have been raised following the conclusion of the claim whilst the Claimant relied upon the “slip rule” given the issue was quickly identified and raised within the initial hearing time.
CJ Leonard first identified that he wasn’t being asked to amend or change the original decision regarding the costs of assessment which stood as assessed. It was determined that given the issue was raised within the initial hearing time, that it could proceed given there was no prejudice to the Defendant, and it was in keeping with the overriding objective that the point could now be raised.
2. Can the Claimant rely upon a Part 36 offer as to the costs of detailed assessment?
It was accepted that the Part 36 had been beaten at assessment, costs awarded £6,119.80 above the assessed figure; the award was, therefore, more advantageous. CJ Leonard in his findings considered the following points.
a. “I am required by CPR 1.2 to give effect to the overriding objective of dealing with cases justly and at proportionate cost.”
b. “The question I have to decide for present purposes is whether the award and the quantification of the costs of assessment fall, as the Claimant contends, within “any issue that arises in” that independent claim for the purposes of CPR 36.2(3).”
The following observations were made.
- CPR 36.2(3) states that a part 36 offer may be made in respect the whole or part of or any issue that arises in (a) a claim, counterclaim or other additional claim. Prior to 2013 Part 36 offers in respect of the whole or part of a claim could be made in any event. Pre 2013 CPR 36.2(2)(d) made provision for the issues that had to be determined prior to an order for costs being made. Any costs assessment thereafter (and award) would follow as a separate issue.
- CPR 47.20(7) confirms that detailed assessment proceedings are to be considered as an
“independent claim”. In this case, the issues within this individual claim were set out within the Bill of Costs, Points of Dispute and Points of Reply and were resolved on the Defendant’s acceptance of the offer against those issues. “The award and quantification of the costs of assessment followed, but they were not issues in the deemed independent claim, all of which had already been resolved.” (para 39)
- CJ Leonard considered that the provisions of CPR 36.17(4) provide that a court must, unless unjust to do so, award the benefits under CPR 36. CPR 36.17(4) which “envisages a claim, or part of a claim or an issue in a claim, which is in itself capable of conferring an entitlement to costs”. It was confirmed that the costs of detailed assessment proceedings don’t carry their own costs, and thus do not meet the necessary criterion. The finding followed consideration that if the Claimant was correct in their approach that cots of assessment fall within “any issue that arises in”, then any Part 36 offer made would, on acceptance result in a further deemed order for costs (CPR 44.9(1)(b)) – which would then provide authority for a detailed assessment of the costs of the costs.
- To allow the above scenario; would be to allow for the “potential for an indefinite cycle of Part 36 offers and new detailed assessment proceedings”. This would result in each set of proceedings being “disproportionate, duplicative and unfair to the paying party. That is not consistent with the overriding objective”.
It was therefore determined that detailed assessment proceedings do not fall within “any issue that arises” and with consideration of the overriding objective CPR 1.2, the Claimant would not be awarded the additional benefits of beating a Part 36 offer.
Kate Benn – Business & Litigation Manager