Expert Witness Journal Issue 66 April 2026 - Flipbook - Page 42
made an o昀昀er whichengaged CPR 36.17, it would
not have been unjust for the Defendant to bear the
additional costs prescribed by the Rule [37].
In Huck, the Court of Appeal held that the
claimant’s o昀昀er to accept a 95:5 split on liability was
e昀昀ective so as to entitle the claimant to indemnity
costs after the defendant was held 100% liable and it
was considered irrelevant that the trial judge could
not have so apportioned liability since it nonetheless
provided the defendant with a “real opportunity for
settlement”. However, the Court added that if any
such liability o昀昀er was self-evidently nothing more
than a “tactical step designed to secure the bene昀椀t
of the incentives provided by the Rule”, the judge
would have discretion to refuse indemnity costs [71],
Huck.
Conclusion
In summary, the judgment has established that
Part 36 consequences can follow a liability-only
o昀昀er but only where liability has been determined
or admitted so that the o昀昀er can be meaningfully
compared to the judgment.
Claimant practitioners must note that if Part 36
o昀昀ers have been validly made with respect to liability
early in proceedings and claimants wish to apply the
cost consequences of Part 36 to a later settlement,
they must ensure that liability is apportioned in that
settlement. For 36.17 to bite in favour of claimants,
the apportionment must be at least as advantageous
as their original Part 36 o昀昀er.
In Broadhurst, Lord Dyson MR observed that the
policy underpinning what is now CPR 36.17 aims
to provide claimants with “generous incentives to
make o昀昀ers” and defendants “with countervailing
incentives to accept them” [31], Broadhurst.
The crux of the Court’s reasoning for overruling
Mundy is at [34]:
“
This article was originally published on 1 Crown
O昀케ce Row’s Quarterly Medical Law Review
Whether litigation is complex and of high value, or
straightforward and of relatively modest value, the
courts should, and the Civil Procedure Rules do,
encourage settlement of speci昀椀c issues where the case
as a whole cannot be settled. In a case where liability
is to be tried before quantum the bene昀椀ts of a liabilityonly o昀昀er in saving costs and court time are obvious,
but even in a fast track case where all contested issues
will be resolved by a district judge or deputy district
judge in the course of a single hearing, liability-only
or quantum-only o昀昀ers are still to be encouraged […]
The 90:10 o昀昀er was in my view to be treated as a
genuine o昀昀er to compromise, just as the 95:5 o昀昀er was
treated in Huck v Robson”.
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Was the outcome “at least as
advantageous” to the Claimant as
the Claimant’s Part 36 o昀昀er?
Claimants, Defendants and Joint. We cover all areas of the UK.
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The Court observed that the “di昀케culty” facing the
Claimant’s was that there never was a determination
of liability to compare to the Part 36 o昀昀er; the
Defendant had made no admissions as to the same,
nor had DDJ Khan made any 昀椀ndings on liability.
However, the Court made clear that if the Defendant
had made such an admission, or DDJ Khan had found
the Defendant 100% liable, “there would [have been]
a case for awarding the Claimant, pursuant to CPR
36.17, costs relating to the issue of liability from the
date of the Claimant’s 90:10 o昀昀er” [36].
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Was this an unjust result?
Kingfisher House Business Centre, 21-23 Elmfield Road, Bromley, BR1 1LT
Contact Name: Mr John Marsh
The Court 昀椀rmly concluded that con昀椀ning the
Claimant’s solicitors to recovering 昀椀xed costs was
not an unjust result and there were no reasons to
depart from the 昀椀xed costs regime. Lord Justice
Bean emphasised that even if the Claimant had
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APRIL 2026
