Expert Witness Journal Issue 66 April 2026 - Flipbook - Page 41
If not, is it unjust to con昀椀ne the Claimant’s
solicitors to recovering 昀椀xed costs?
Mundy v TUI UK Ltd
[2023] EWHC 385 (CH)
4.
In Mundy, the claimant proposed two o昀昀ers to
settle; one to settle liability on a 90:10 percent
basis in favour of the claimant, and the other to
accept £20,000 in full and 昀椀nal settlement of the
whole claim. A countero昀昀er was made later by the
defendant to pay £4,000 in full and 昀椀nal settlement.
The second issue was the “key” focus of the appeal
[31], and its determination likely the most impactful
in practice.
1. Was there a ‘Judgment’?
The Court considered whether or not the N24 form
headed ‘General Form of Judgment or Order’ was,
in fact, a judgment suitable for CPR 36.17(1). The
Court dealt with this brie昀氀y and Lord Justice Bean
concluded at [30] that he had “no doubt that it [was]
both a judgment and an order”, considering “any
attempt to distinguish between the two terms in
describing” the Form was “misconceived”. The form
itself, and in particular paragraphs 4 and 3 thereof,
could accurately be described as either a judgment
or an order.
At trial, the Judge found in favour of the claimant,
but awarded total damages of £3,805.30. The
judge ordered that the defendant pay costs up to
the date of expiry of the defendant’s o昀昀er and the
claimant pay the defendant’s costs thereafter. The
claimant appealed on the ground that adverse costs
consequences pursuant to CPR 36.17(1) should be
applied, since the 100% win on liability was more
advantageous than the 90:10 percent liability o昀昀er
the defendant had rejected.
2. Liability o昀昀ers and CPR 36.17
The subsequent appeal was dismissed by Mrs Justice
Collins-Rice who found that allowing adverse cost
consequences pursuant to CPR 36.17(1) for a 90:10
split liability o昀昀er risked a situation where a claimant
could fail to beat a defendant’s 昀椀nancial o昀昀er and
have beaten their own liability o昀昀er; in this scenario,
as the Court of Appeal summarised:
“
The Court overruled Mundy “on the issue of
principle” [35]; that principle being Mrs Justice
Collins-Rice’s “obiter” suggestion “that a 90:10
liability o昀昀er is ine昀昀ective as a matter of principle to
engage CPR 36.17”. The Court 昀椀rmly disagreed with
this principle, preferring the policy considerations
outlined in Huck v Robson [2002] EWCA Civ 398
andBroadhurst v Tan [2016] EWCA Civ 94, neither
of which, it was noted with regret, were cited in
Mundy [34].
This would engage both CPR 36.17(3) and CPR
36.17(4) which are otherwise mutually exclusive.
Both parties would thus recover costs for the same
periods, but only the Claimant would receive the
enhancements in CPR 36.17(4)”.
Mrs Justice Collins-Rice expressed concern that
90:10 liability o昀昀ers could be used as a “unilaterally
imposed insurance policy to reverse the losses
otherwise provided for by CPR 36.17”. Fitting such
an o昀昀er into the terms of CPR 36.17(1)(b) would, she
outlined, strain the carefully balanced language of
the provision and undermine the “clarity, simplicity
and predictability” essential to the “incentivising
e昀昀ects” of the same. Further, a 90:10 liability o昀昀er
did not amount to an o昀昀er to settle the claim on
quanti昀椀able 昀椀nancial terms, preventing comparison
between the defendant’s o昀昀er and the claimant’s
actual award.
The appeal
There were four issues for determination by the
Court of Appeal:
1.
Was there a ‘judgment’?
2.
If so, can a 90:10 o昀昀er engage the provisions of
CPR 36.17(4)?
3.
If so, on the facts of this case, was the outcome
“at least as advantageous to the Claimant as the
proposals contained in the Claimant’s Part 36
o昀昀er”?
EXPERT WITNESS JOURNAL
39
APRIL 2026
