Dominic Regan shares his concern that proportionality, a major plank of the Jackson reforms, is so often sidelined
Part 36 and a percentage costs order have generated much attention in a recent first instance decision. I am deeply troubled by it. Webb v Liverpool Womens’ NHS Foundation Trust [2015] EWHC 449 (QB), [2015] All ER (D) 39 (Apr) is a decision of HHJ Saffman sitting as a High Court judge.
This was a clinical negligence claim involving a serious obstetric injury which was an all or nothing action (para 18). C offered by way of Part 36 to accept 65% on liability. This was rejected by D (although remember rejection in this context does not amount to rejection!). D offered an “overly parsimonious 30%” (para 40).
In the event C won and recovered damages in full even though she failed upon a number of specific allegations (para 4). The judge decided that the failure of the claimant to establish every single allegation ought to be reflected in a percentage costs award. Nevertheless,
