Fixed Costs & Broadhurst v Tan; Taylor v Smith [2016] EWCA Civ 94:
In a recent case it was argued by the claimant that a Part 36 offer made after the issue of Stage 3 proceedings will have the consequences as set out under CPR 36.17. They had completed a Statement of Costs ready to hand. In support of this position, they relied upon Broadhurst v Tan; Taylor v Smith [2016] EWCA Civ 94.
There is no doubt Broadhurst v Tan; Taylor v Smith is an important judgment but what effect does it have on an MOJ Stage 3 hearings and Part 36 offers (aside from the CPR 36.25 Section II ‘Protocol Offer’)? Unfortunately none.
In Broadhurst v Tan; Taylor v Smith it was established that “where a claimant makes a successful Part 36 offer in a section IIIA case, he will be awarded fixed costs to the last staging point provided by rule 45.29C and Table 6B. He will then be awarded costs to be assessed on the indemnity basis in addition from the date that the offer became effective.” The court was concerned with Section IIIA as opposed to Section III which deals with costs awarded at MOJ Stage 3 hearings.
The only applicable costs awarded at MOJ Stage 3 hearings are the fixed costs as provided for at CPR 45.17. What is the position when a claimant beats their protocol offer? CPR 36.24(1) Section II clearly states Section I does not apply therefore the claimant will not be entitled to the cost consequences as set out at CPR 36.17. Instead, the claimant who matches or beats their Protocol offer is entitled to the consequences set out at CPR 36.29(4) only.
What about claimants who make Part 36 offers in addition to the Protocol offers? The answer is they have no effect at MOJ Stage 3 hearings. Any offer to settle has to be made in accordance with CPR 36.25. Parties are free to make Part 36 or any offers as they wish however, any offer to settle which is not made in accordance with Section II will not have any costs consequences (CPR 36.24(4)).
Claims for Gratuitous care
Although seldom in cases involving minor soft tissue injuries, claimants sometimes claim for gratuitous care as part of the MOJ portal process. A claim for gratuitous care is predicated on the basis that the claimant has been restricted because of his/her injuries, thus necessitating the provision of care from friends or loved ones. It is important to note that a claimant can only claim for care that goes “above and beyond” any arrangement that may already be set up for the provision of care as between the claimant and caregiver.
When representing a Defendant at an MOJ Stage 3 oral hearing, it is important to closely scrutinise the medical evidence (usually this will be in the form of a medical report from a General Practitioner) or any other physiotherapy documentation that has been provided by the Claimant.
In a recent case, a claimant claimed approx. £1600 for Gratuitous care (amongst other heads of loss) over a period of 6 months. The Claimant suffered minor soft tissue injuries to her neck and shoulders. The prognosis was that the Claimant would recover from all injuries 6 months post-accident. The claimant, who was 64 years of age, was the primary carer for her autistic grandson. At the point of examination (1.5 months post-accident), the Claimant reporting suffering a ‘severe restriction’ in childcare, shopping, walking, swimming, DIY etc. The pain was said to be initially severe but described as moderate-severe at the time of examination. The claimant had a 5-10% restriction in the range of movement in her injury sites when examined by the medical expert.
On the day of the hearing, the Claimant’s representative handed Counsel a copy of the Claimant’s witness statement. This has not been provided to the Defendant’s solicitors prior to the hearing. Counsel opposed the introduction of the witness statement on the basis that it amounted to an ambush and the witness statement should have been provided at Stage 2 (after all, the whole point of the portal process is that both sides know the full basis on which a claim is made). The witness statement provided that the claimant’s daughter assisted with the provision of care for the Claimant’s grandson – helping him in/out of bed, transporting him about, preparing meals, general care etc. Despite being served on the morning of the hearing, the District Judge allowed the claimant’s witness statement in. Counsel successfully submitted that the medical evidence was inconsistent with the claim for care. The 5-10% restriction in movement noted on examination did not correspond to the ‘severe restriction’ reported by the claimant. Nor did it justify a claim for gratuitous care in the sum of £1600. The District Judge agreed. The claimant’s claim for care was reduced from £1600 to £200. This highlights the important of looking closely at the medical evidence when preparing for a Stage 3 Oral hearing. It is also important that Counsel is prepared to robustly challenge the evidence in court.
