Expert Witness Journal Issue 66 April 2026 - Flipbook - Page 40
Part 36 costs consequences and
liability-only o昀昀ers: a key development
by Josephine Lunnon, Pupil Barrister at 1 Crown O昀케ce Row.
Smithstone v Tranmoor Primary School
[2026] EWCA Civ 13
36.17 was engaged, which provides for its adverse
cost consequences to apply:
In Smithstone, the Court of Appeal addressed a key
point of principle and uncertainty concerning cost
consequences for liability-only Part 36 o昀昀ers and
marked a signi昀椀cant development for practitioners.
The Court con昀椀rmed that Part 36 costs consequences
can indeed be triggered by liability-only Part 36
o昀昀ers, overturning and clarifying the position
outlined in Mundy v TUI UK Ltd [2023] EWHC 385
(Ch). This decision is likely to prompt a rise in the
use of such o昀昀ers.
Costs consequences following judgment
Judgment was handed down on 16th January 2026
by Lord Justice Bean, with Lord Justice Phillips and
Lord Justice Stuart-Smith concurring.
2.
1.
Background
The Claimant was a child who su昀昀ered a minor
injury whilst at school in September 2018, and the
claim was accordingly entered into the Low Value
Fixed Costs regime by virtue of its modest value.
a.
a claimant fails to obtain a judgment more
advantageous than a defendant’s Part 36
o昀昀er; or
b.
judgment against the defendant is at least
as advantageous to the claimant as the
proposals contained in a claimant’s Part 36
o昀昀er……
For the purposes of paragraph (1), in relation to
any money claim or money element of a claim,
“more advantageous” means better in money
terms by any amount, however small, and “at
least as advantageous” shall be construed
accordingly.
DDJ Khan determined that the 昀椀xed costs regime
applied, seemingly on the basis that the Claimant’s
o昀昀ers “did not bite” for CPR 36.17, that it was
not unreasonable for the Defendants to import
their defenceup to the day of trial for purposes of
assessment, settlement at the door of Court is “not
unusual”, and the settlement sum agreed upon was
much lower than the Claimant had ever proposed.
A Part 36 o昀昀er was made by the Claimant to settle
liability on a 90/10 basis on 13 December 2018.
This was rejected six days later by the Defendant.
The matter, once proceedings had been issued, was
allocated to the Fast Track and listed for trial in
November 2020.
Over three years later, the Claimant was granted
permission to appeal against this costs decision by
His Honour Judge Baddeley, who later heard the
appeal in August 2024.
The Claimant made a without prejudice o昀昀er of
settlement in March 2020 for £3,500, which was
never accepted.
HHJ Baddeley dismissed the appeal on the basis
that he was bound by Mundy (outlined below)
and observed that there was never a concession or
apportionment of liability; “A global settlement was
put to the deputy district judge, albeit without any
discussion of discounts from full liability damages”
[21].
The Defendant’s witness failed to appear at trial
and the claim was settled at Court for £2,650. The
Claimant being a child, the settlement required
approval by the Court, which was granted by Deputy
District Judge Khan. The Claimant contended that
the case fell outside the 昀椀xed costs regime as CPR
EXPERT WITNESS JOURNAL
This rule applies where upon judgment being
entered—
38
APRIL 2026
