Normal order for costs where claimant accepts money out of time

The defendants appealed against a Costs Order made by a Judge when she approved the settlement of a claim giving a claimant permission to accept, out of time, a sum paid into court by the defendants pursuant to Part 36.

The claimant had suffered a minor head injury at work but in consequence had developed a disabling psychiatric condition and was a patient. He claimed damages and the insurers admitted liability subject to medical evidence of causation. The claimant had been diagnosed with suffering from a lymphoma unconnected with either the accident or his psychiatric condition.

The initial prognosis was that the claimant had a 70 per cent chance of survival. The claimant served a Schedule of Damages including figures for future loss based on a normal life expectancy. The defendants made a Part 36 offer that was not accepted. However, soon afterwards, the claimant’s life expectancy was revised downwards after his lymphoma became aggressive.

His advisors reconsidered the Part 36 offer and decided to accept it. In giving permission to accept the money in court, the Judge ordered the defendants to pay the claimant the costs of the claim including his costs after the expiration of the period of 21 days from the date of the payment into Court.

The Court of Appeal reversed this decision holding that the Judge had been wrong in believing she had an unfettered discretion. The question was whether there were grounds to exercise her discretion in favour of the claimant; it was only if she could properly conclude that it was unjust to order the claimant to pay the costs in question that she could depart from the usual order which was an order for the claimant to pay the defendant’s costs after the expiration of 21 days.

The Judge had not identified any fact that made it unjust to make the usual order for the claimant to pay the defendant’s costs after 21 days from the payments into court.

Court of Appeal, 14 March 2007

Pre-action disclosure and the Data Protection Act 1988

The claimant was assaulted by a patient in a mental health unit. We needed disclosure of the incident report logs, care plans assessments etc. The defendants had denied liability but then, after we made an application for pre-action disclosure, conceded liability but argued contributory negligence. We continued with the hearing because we needed the documents to deal with the issue of contributory negligence.

The District Judge said that we were entitled to the records. The claimant’s solicitors could not be expected to investigate the claim and advise in relation to prospects without such disclosure. The defendants had the upper hand and we were, through no fault of our own, placed at a disadvantage.

As the documents related to a patient and were ‘privileged’ documents, we argued that, in the light of the admission and the allegation of contributory negligence, it was effectively the defendant’s application for they sought to rely upon material within the patient’s records which could not be disclosed without permission. The solicitors would not be able to access copies of the documents until the Trust had a signed Court Order, and therefore we were doing their job for them.

The Judge agreed with this argument and awarded us the costs of the application.

Nottingham County Court