- A claimant (W) was born with a defect caused by the defendant's (L) negligence during labor and delivery. W's claim had two parts and the judge only upheld the first part. - W made a Part 36 offer that was more favorable than the judgment. W argued that Part 36 consequences should apply to all costs, while L argued costs should only be for the successful part of the claim. - The Court of Appeal ruled that Part 36 is a self-contained code, so the full Part 36 consequences applied since L could have avoided costs by accepting the offer. W was entitled to full recovery of costs.

1. Legal Updates from Eversheds’
Lawyer Development Team
B-Brief
Part 36 trumps Part 44
Webb v Liverpool Women’s NHS Foundation
Trust (2016)
22 April 2016
Press To

2. Eversheds LLP | 22/04/2016 |
• Claimant (W) was born with a defect caused by a difficult
labour. This was attributed to negligence by the Defendant
(L).
• W’s claim fell into two parts. The judge upheld the first claim
but not the second. W was entitled to full recovery of
damages.
• W made a Part 36 offer in Oct 2014 but obtained a judgment
more favourable than the terms of the offer.
Facts
Legal Updates from Eversheds’ Lawyer Development Team

3. Eversheds LLP | 22/04/2016 |
• W contended that Part 36 consequences applied to all of W’s
costs and should be paid on an indemnity basis from the date
of expiry of the relevant period.
• L contended that applying Part 36 consequences to this case
would be unjust as W only succeeded on the first part of the
claim and should only be awarded costs for that part.
• The trial judge agreed with L and made an issues-based
proportionate costs order reducing W’s costs. W appealed.
Facts continued
Legal Updates from Eversheds’ Lawyer Development Team

4. • Should Part 36 consequences apply where the
claimant has only succeeded on part of a claim?
• In these circumstances is it more appropriate to
make an issues-based proportionate costs order
under Part 44 instead?
Issues

5. Sir Stanley Burnton giving the decision said:
• When deciding costs orders to make under Part 36, the Court
does not first exercise its discretion under Part 44. It only
needs to consider the discretion under Part 36.
• Part 36 is a self-contained code. A successful claimant is to
only be deprived of all or part of their costs if the court
considers it just to do so.
• The decision to do that depends on all the circumstances of the
case. If the defendant could have avoided those costs by
accepting the Part 36 offer then that is something the court will
consider.
Decision

6. Furthermore:
• In this case, the two parts of the claim all related to one event;
the complicated labour. It therefore, cannot be unjust for W to
be awarded all her costs.
• L could have avoided all the costs of the trial by accepting W’s
offer when it was originally made.
• Appeal allowed.
Decision continued

7. • It is imperative that a Part 36 offer letter is drafted precisely
and complies completely with the rule, so costs consequences
can apply.
• Part 36 offers do not prevent courts from making issues-based
proportionate costs orders.
• The timing of the offer, its terms and the conduct of the parties
are all relevant factors that the court will take into
consideration when deciding whether the award of costs under
Part 36 is unjust.
• Artificial attempts to divide up a claim into several issues will
be closely analysed.
Learning Points

8. WARNING
1. For the purpose of abbreviation and presentation, only
the main aspects of the case have been mentioned
2. This information is for guidance only and should not be
regarded as a substitute for research or taking legal
advice
3. ANOTHER CASE UPDATE FROM EVERSHEDS
Webb v Liverpool Women’s NHS Foundation
Trust (2016) EWCA Civ 365
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