SG v Hewitt [2012] EWCA Civ 1053 (02 August 2012)

SG v Hewitt [2012] EWCA Civ 1053 (02 August 2012)

It was unjust to apply the normal costs rule under CPR 36.10(5) in this case because the claimant, a child with a severe brain injury, could not reasonably accept the Part 36 offer until a reliable prognosis was available at adolescence. All post-offer costs were incurred solely to obtain evidence for court approval, and the defendant was aware of the necessity to wait. The judge erred by treating the uncertainty as an ordinary litigation contingency and failing to give weight to the implications of the claimant's status and the requirement for approval. The costs order was set aside and the claimant awarded costs throughout.

Citation
[2012] EWCA Civ 1053
Parties
Appellant/claimant: SG; Respondent/defendant: Hewitt
Jurisdiction
England and Wales
Judgment Date
02 August 2012
Procedural Posture
Personal Injury Appeal / Court of Appeal Judgment
Outcome
Appeal allowed; costs order set aside.
Legal Topics
CPR Part 36 Offers, Costs Orders, Settlement Approval for Minors, Limitation Periods, Court Approval of Settlements
Civil Procedure Personal Injury Costs CPR Part 36 Offers Costs Orders Settlement Approval for Minors Limitation Periods Court Approval of Settlements

Case Brief

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Parties

SG

Appellant/claimant

Hewitt

Respondent/defendant

Procedural Posture

Personal Injury Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether it was unjust to apply the normal costs rule under CPR 36.10(5) after late acceptance of a Part 36 offer in a child personal injury case
  2. 2 Whether the claimant should bear costs incurred after expiry of the relevant period for acceptance of the Part 36 offer

Ratio Decidendi

It was unjust to apply the normal costs rule under CPR 36.10(5) in this case because the claimant, a child with a severe brain injury, could not reasonably accept the Part 36 offer until a reliable prognosis was available at adolescence. All post-offer costs were incurred solely to obtain evidence for court approval, and the defendant was aware of the necessity to wait. The judge erred by treating the uncertainty as an ordinary litigation contingency and failing to give weight to the implications of the claimant's status and the requirement for approval. The costs order was set aside and the claimant awarded costs throughout.

Court Disposition

Appeal allowed; costs order set aside.

Orders

  • Defendant to pay claimant's costs throughout, including costs incurred after 23 April 2009.