Jeremy Hyam QC and Matthew Barnes in significant case regarding late acceptance of a Part 36 offer and whether litigation conduct justified indemnity costs.

The claimant, who was mentally fragile, suffered from Lithium Toxicity in 2012 as a result of which she suffered a prolonged stay in intensive care. She issued a claim in February 2015 against the defendant claiming damages for clinical negligence. Although the Defendant’s own SUI report was highly critical of the care she received, liability was denied.

The Claimant made at 95% offer on liability in February 2017.  This was rejected by the Defendant who continued to deny liability albeit making offers to settle on a 65/35 basis, a 75/25 basis and then an 85/15 basis all of which were rejected by the Claimant. After delaying the meeting of liability experts, the Defendant ultimately accepted the Claimant’s offer but on condition that costs were awarded on the standard basis. The Claimant disputed this ‘condition’ and sought her costs on an indemnity basis from the date of the expiry of her 95% offer claiming that the Defendant’s conduct of the litigation was such as to justify an award of indemnity costs.

The Judge ruled that the Claimant’s 95% offer had been accepted and that the condition the Defendant’s solicitor purported to impose was invalid. The Judge reviewed the Defendant’s conduct of the litigation and held that , it was ‘out out of the norm’, such that indemnity costs should be awarded: Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hamer Aspden & Johnson (Costs) [2002] EWCA Civ 879 followed.

Jeremy Hyam QC was instructed by Olive Lewin of Leigh Day for the Claimant. Matthew Barnes was instructed by Andrew Bate of Bevan Brittan for the Defendant.

Read more about the case on Lawtel here.