Expert Witness Journal Issue 67 June/July 2026 - Flipbook - Page 62
Part 36 o昀昀ers when the
prognosis is unclear
by Colm Nugent, Barrister & Vanessa McKinlay, Full-time Area Coroner
at Gatehouse Chambers.
This issue arose in the High Court decision in IEH v
Powell [2023] EWHC (KB).
This article considers the impact of IEH v Powell
[2023] which remains unchallenged in the higher
courts.
The Claimant was 8 years old when he was injured
in a road tra昀케c collision in 2016. He sustained a
traumatic injury to the brain, along with other
injuries. Judgment was entered for the Claimant in
August 2018.
As we know, for QOCS cases issued before 6 April
2023, rule 44.14 allows a Defendant to enforce a costs
order made in its favour case against an order for
damages and interest made in favour of a Claimant.
The Defendant made an o昀昀er to settle in November
2020, with the end of the relevant period being in
December. The o昀昀er was accepted (subject to the
court’s approval) in July 2022. This was a claim issued
before the rule change, so the issue was not whether
the Defendant could enforce a costs order against
the Claimant’s settlement amount or costs. The issue
was whether the Claimant could have his costs of the
action up to the date of approval. In other words,
the court had to decide whether it would be unjust
to follow the provision in rule 36.13(5) which would
otherwise result in a costs order in the Defendant’s
favour from December 2020 to the date of approval
of the settlement. The Claimant had the burden of
establishing that it would be unjust.
Cases issued after 6th April 2023 (and for those who
have a PI claim that arose on or before 5th April
2023, time is running out!) have been subject to
the new rule. This allows a Defendant in a QOCS
case to enforce a costs order in its favour against a
Claimant’s order or settlement for damages, interest
and costs.
Where a Defendant makes a Part 36 o昀昀er and it is
accepted after the 21 day ‘relevant period’, rule
36.13(5) provides that the Claimant will recover costs
to the end of the relevant period and the Defendant
will recover its costs from the end of the relevant
period to the date of acceptance. However, if the
court considers that it would be unjust to apply this
rule, it will not do so.
Medical reports were served with the Particulars of
Claim addressing the Claimant’s brain injury. These
were from a Consultant Paediatric Neurologist
and a Consultant Neuropsychiatrist. Following a
stay, the Claimant was ordered in December 2019
to serve updated medical reports by March 2022.
The Defendant’s Part 36 o昀昀er therefore came long
before the date for the Claimant to serve his updated
evidence.
Following the rule change, Claimants receiving
a Part 36 o昀昀er will have in mind the risk that late
acceptance of that o昀昀er might now go beyond not
recovering their costs from the end of the relevant
period. They might also face a Defendant being
able to enforce its costs order against the Claimant’s
damages, interest and costs obtained in that
settlement.
What happens in a clinical negligence or personal
injury case where a Defendant makes a Part 36 o昀昀er
at a stage when the Claimant’s prognosis is still
uncertain? If a Claimant waits until the picture
becomes clear and then accepts the o昀昀er late, will
the Defendant be able to recover its costs or will the
court consider that to be unjust in the circumstances?
EXPERT WITNESS JOURNAL
The position of the Claimant’s experts when
proceedings were served was that it was too soon to
provide a reliable prognosis, given the possibility
of latent disability which might not become evident
until the Claimant got older. The neurologist
recommended reassessment in three to four years’
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JUNE 2026
