High Court restores Claimant‘s ’additional amount’ under CPR 36.17(4)

JLE v Warrington & Halton Hospitals NHS Trust Foundation Trust [2019] EWHC 1582 (QB)

This was an appeal against the decision of Master McCloud not to award the claimant a 10% ‘additional amount’ under CPR 36.17(4) on grounds that it would be disproportionate and unjust to do so where the claimant had beaten its own offer by just £7,000 on a bill assessed at £431,813.05. We covered the first instance decision here.

In granting the appeal Mr Justice Stewart found that the Master had correctly found that the Court does have jurisdiction to consider it unjust to award some, but not necessarily all the orders in 36.17(4), but that it would be an unusual case where the circumstances of the case yield a different result for only some of the orders envisaged.

He went on to find that the Master erred in principle in finding that “the very small margin by which the offer was beaten relative to the much greater size of the bill” was a significant factor that she was entitled to take into account.

“…it is not open to judges to take into account in the exercise of the discretion the amount by which a Part 36 Offer has been beaten. To do so risks re-introducing Carver and the adverse consequences which it brought in its wake, and which the Rule Committee reversed on the recommendation of Jackson LJ.”

Furthermore, the Master erred in:

  • deciding that some difficulty in assessing an offer because the bill was reduced by some 30% could be a reason to find it unjust to make the additional award; and
  • factoring into her consideration the large size of the 10% ‘bonus’ award relative to the margin by which the offer was beaten.

“in my judgment all three reasons given by the Master were inadmissible reasons for finding it to be unjust to make the additional award. There was nothing unjust about the circumstances of this case. Indeed there was nothing unusual about the circumstances so that the high threshold of proving injustice could be properly regarded as met. That is important because if this case qualifies for withholding the additional award, that would be a green light to similar arguments in many, many other detailed assessments. It would also be a serious disincentive to encouraging good practice and incentivising parties to make and accept appropriate offers – cf OMV at [32].”

JLE v WARRINGTON & HALTON HOSPITALS NHS TRUST FOUNDATION TRUST [2019] EWHC 1582 (QB)