Expert Witness Journal Issue 67 June/July 2026 - Flipbook - Page 63
time and the neuropsychologist at the ages of 13, 16
or 18, depending on the Claimant’s progress.
There was an issue about how much information had
been given to the Defendant about the steps that the
Claimant had taken. Whether this would a昀昀ect the
amount of costs recovered by the Claimant would be
a matter for detailed assessment.
Following the Part 36 o昀昀er, the Claimant’s legal
team took a number of steps. They obtained updated
evidence from the original experts and additional
reports from a Child and Adolescent Psychiatrist
and a Speech and Language Therapist. They
obtained evidence from the Claimant’s teacher and
family (complicated by the fact that the Claimant
lived abroad). They then obtained advice from
Leading Counsel. Having taken these steps which
showed a signi昀椀cant improvement in the Claimant’s
condition, they were able to advise acceptance of the
Part 36 o昀昀er.
The approach taken by the court in this case should
provide some reassurance to Claimants facing Part
36 o昀昀ers where the prognosis is unclear, particularly
given the importance of the rule changes regarding
recoverability of Defendant’s costs. However, it
was important in this case that the Claimant was
able to show that active steps had been taken to
move the medical evidence forward and not simply
wait for time to pass. In doing so, the Claimant’s
improvement was con昀椀rmed, and the o昀昀er was
deemed acceptable.
The court held that it would be unjust to follow the
usual rule and make a costs order in the Defendant’s
favour. The court considered the particular facts of
this case and the matters contained in rule 36.17(5).
The following points were central to the judgment:
1.
Following SG (A Child) v Hewitt (Costs) [2012]
EWCA Civ 1053 and Briggs v CEF Holdings Ltd
[2017] EWCA Civ 2363, the court avoided
where possible analysis of the facts in other
costs authorities, instead concentrating on the
principles and the facts of this particular case.
2.
The fact that the Claimant is a child may not
always be relevant to an issue under rule 36.13(5)
but in this case it was because the long term
e昀昀ects of a traumatic brain injury cannot usually
be known until later in a child’s development.
3.
Having to wait to determine the e昀昀ects of the
Claimant’s injury was not ‘a normal contingency
of litigation’.
4.
It was reasonable for the Claimant not to
accept the o昀昀er within 21 days on the evidence
then available. At the time of the o昀昀er, the
Claimant’s solicitors were working towards
obtaining updated evidence in line with the
court’s timetable and their conduct in doing so
was reasonable.
5.
6.
The practice point for Claimant lawyers seems to be
to take active steps to review the Claimant’s progress
in the face of an o昀昀er, and keep the Defendant
informed that you are doing so. Be aware that the
correspondence sent during this period may well by
the subject of judicial scrutiny at a later date.
Medico legal assessment of
claimants suffering traumatic brain
injury and psychological injury
arising from accidents and clinical
negligence.
There were added complications in that the
Claimant lived abroad and both his ability to
travel for expert assessments and his ability to
attend school were a昀昀ected by the pandemic.
The need to appoint the O昀케cial Solicitor
as litigation friend owing to the Claimant’s
mother’s illness added a further delay (although
it did not delay the updating of the medical
evidence).
Consulting rooms: London,
Birmingham, Exeter, Thames
Valley, Bristol & Manchester.
Co-editor and Author of Brain
Injury Claims, published by
Sweet and Maxwell.
It was “extremely doubtful” that the court would
have been able to approve the Claimant’s
acceptance of the o昀昀er in late 2020 on the basis
of the evidence as it was. It was more likely that
the court would have adjourned the approval
hearing and given directions for updated
evidence.
EXPERT WITNESS JOURNAL
61
JUNE 2026
