Carver v BAA Plc
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward,Lord Justice Rix,Lord Justice Keene |
| Judgment Date | 22 April 2008 |
| Neutral Citation | [2008] EWCA Civ 412 |
| Docket Number | Case No: B3/2007/1350 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 April 2008 |
Before Lord Justice Ward, Lord Justice Rix and Lord Justice Keene
Court of Appeal
Where a claimant had obtained judgment as to liability and had been awarded damages exceeding an earlier payment-in, the judge was none the less empowered to award costs in favour of the losing party or to make no order for costs.
The Court of Appeal so stated when dismissing the appeal as to costs of the claimant, Lisa Carver, from Judge Knight, QC, who in Central London County Court, on June 4, 2007, found for the claimant in personal injury proceedings against the defendant, BAA plc, and awarded a sum exceeding a payment-in by Pounds 51 but ordered Ms Carver to pay BAA's costs after expiry of time to accept the payment-in, and made no costs order as to an earlier period covered by an offer to settle without admission of liability.
Mr John Coughlan for Ms Carver; Mr John Snowden for BAA.
LORD JUSTICE WARD said that in non-money claims all the circumstances had to be taken into account, and the same should apply in money claims.
In particular, the rubric "more advantageous" in rule 14(1)(a) of Part 36 of the Civil Procedure Rules permitted a more wideranging review of all the facts and circumstances of a case in deciding whether the judgment which was the fruit of the litigation was worth the fight.
Here, the extra Pounds 51 gained was more than offset by the irrecoverable costs incurred by the claimant in continuing to contest the case for as long as she did; it was appropriate to make no order for costs for the prior period in light of the manner in which the litigation had been conducted.
Lord Justice Rix and Lord Justice Keene agreed.
[2008] EWCA Civ 412
Lord Justice Ward
Lord Justice Rix And
Lord Justice Keene
Case No: B3/2007/1350
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Central London County Court
His Honour Judge Knight QC
6BM03600
Mr John Coughlan (instructed by Forum Law) for the Appellant
Mr John Snowden (instructed by Messrs Barlow Lyde and Gilbert) for the Respondent
Hearing dates: 14 January 2008
Introduction
The issue in this appeal boils down quite simply to this: if a claimant beats a payment of money into court by a modest amount, even £1, has she obtained a judgment more advantageous than the defendant's Part 36 offer or is the Court entitled to look at all the circumstances of the case in deciding where the balance of advantage lies? His Honour Judge Knight QC sitting in the Central London County Court on 4th June 2007 took the latter, broad view and so he ordered the claimant to pay the defendant's costs of the claim after the time for accepting the payment had expired. He also made no order for costs for the prior period covered by an earlier Calderbank offer. The claimant now appeals with permission granted by Sir Henry Brooke.
The Civil Procedure Rules
CPR 36 originally distinguished between Part 36 payments into court and Part 36 offers to settle. An offer to settle a money claim would not have the consequences set out in that Part unless it was made by way of a Part 36 payment. The costs consequences where a claimant failed to better a Part 36 payment or obtained less advantage from the judgment than a Part 36 payment were set out in CPR 36.20 as follows:
“(1) This Rule applies where at trial a claimant –
(a) fails to better a Part 36 payment; or
(b) fails to obtain a judgment which is more advantageous than a defendant's Part 36 offer. [Emphasis added.]
(2) Unless it considers it unjust to do so, the court will order the claimant to pay any costs incurred by the defendant after the latest date on which the payment or offer could have been accepted without needing the permission of the court.”
It was the generally accepted practice that beating the payment-in by as little as £1 was doing better than the payment into court and the cost consequence followed: the claimant was always at risk.
The Rules changed with effect from April 6th, 2007. Payment into court no longer plays any role in the Part 36 offer to settle procedure since that date. Now where an offer is or includes an offer to pay a single sum of money that sum must be paid within 14 days of the date of acceptance and if not so paid judgment may be entered for the unpaid sum (see CPR 36.11(6) and (7)). The costs consequences following judgment are now set out in CPR 36.14 as follows:
“(1) This Rule applies where upon judgment being entered –
(a) a claimant fails to obtain a judgment more advantageous than a defendant's Part 36 offer; or
(b) judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant's Part 36 offer.
(2) Subject to paragraph (6), where Rule 36.14(1)(a) applies, the court will, unless it considers it unjust to do so, order that the defendant is entitled to –
(a) his costs from the date on which the relevant period expired; and
(b) interest on those costs.
(3) Subject to paragraph (6), where Rule 36.14(1)(b) applies, the court will, unless it considers it unjust to do so, order that the claimant is entitled to –
(a) interest on the whole or part of any sum of money (excluding interest) awarded at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired;
(b) his costs on the indemnity basis from the date on which the relevant period expired and
(c) interest on those costs at a rate not exceeding 10% above base rate.
(4) In considering whether it would be unjust to make the orders referred to in paragraph (2) and (3) above, the court will take into account all the circumstances of the case including –
(a) the terms of any Part 36 offer;
(b) the stage in the proceedings when any Part 36 offer was made including in particular how long before the trial started the offer was made;
(c) the information available to the parties at the time when the Part 36 offer was made; and
(d) the conduct of the parties with regard to the giving or refusing to give information for the purposes of enabling an offer to be made or evaluated.
…
(6) Paragraphs (2) and (3) of this Rule do not apply to a Part 36 offer –
(a) that has been withdrawn;
(b) that has been changed so that its terms are less advantageous to the offeree, and the offeree has beaten the less advantageous offer;
(c) made less than 21 days before the trial, unless the court has abridged the relevant period.”
The commentary on this Rule in the White Book Service 2007 reads as follows:
“The Rule now uses the expressions more advantageous than a defendant's Part 36 offer and at least as advantageous to the claimant as the proposals contained in a claimant's Part 36 offer. Different consequences follow. In particular the entitlement, unless the court considers it unjust, to the enhancement provisions of r. 36.14(3) are not available to the defendant.
These provisions are designed as an incentive to encourage claimants to make and defendants to accept appropriate offers of settlement. Such incentive would be deprived of effect unless the non-acceptance of that which ultimately proves to have been a sufficient offer ordinarily will advantage the claimant in the respects set out in the rule. …”
The brief facts of this case
Miss Lisa Carver was an air hostess flying in and out of Gatwick Airport. On making her way to the airport terminal building on 31st March 2003 she stepped into a lift which, due to a mechanical defect, had stopped some 2 feet below floor level. Miss Carver fell heavily on the left side of her body and injured her left ankle. She was taken to the Accident and Emergency department of the local hospital where X-rays were taken and she was told she had a ligament injury to that ankle. She attended her general practitioner and was away from work for about four weeks.
Her solicitors notified Gatwick Airport of her claim complaining that she had suffered torn ligaments to her left foot which was severely bruised and swollen. On 24th July BAA, as the body responsible for the safety of the airport, conceded liability and indicated a willingness to consider any reasonable claim. On 17th November 2003 Miss Carver's solicitors sent a medical report from a Dr Goves of soft tissue injuries and they submitted a schedule of loss amounting to £2,170. On 9th February 2004 BAA made an interim payment in the sum of £520 to cover the costs of physiotherapy and chiropractor treatment. Time passed. In the summer of 2004 Miss Carver consulted her chosen orthopaedic expert, Mr Chohan and his reports were referred to BAA. On 17th November 2005 BAA wrote making what was called a “Part 36 offer” observing that Miss Carver had not appeared to suffer a significant injury although on the basis of those medical reports she would suffer some ache or discomfort from time to time from what was a soft tissue injury to the left ankle. BAA took the view that the appropriate amount of general damages was £3,000 and they offered a global settlement of £3,486 on a Part 36 basis open for acceptance for 21 days, that sum being in addition to the £520 already paid, so that offer was worth £4,006.
Miss Carver was not content with that offer and considered it necessary to instruct another expert with specialist knowledge of ankle injuries. In March 2006 her solicitors submitted Mr Gillham's report and on 21st March 2006 brought her claim for damages in excess of £5,000 but less than £15,000 against BAA. She relied on...
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