| COSTS — Discretion of court — Conduct of parties — Claimant awarded damages exceeding payment in — Whether result “more advantageous” than earlier payment in — CPR r 36.14
Carver v BAA plc [2008] EWCA Civ 412; [2008] WLR (D) 122
CA: Ward, Rix and Keene LJJ: 22 April 2008
Where a claimant had obtained judgment as to liability, and an award in damages of a sum exceeding an earlier payment in, a judge was empowered by CPR r 36.14(1) to adopt a broad approach when considering costs and the question whether the result was “more advantageous” vis à vis a refused payment in, and he was entitled if appropriate to award costs in favour of a losing party or to make no order for costs.
The Court of Appeal so stated when dismissing the appeal of the claimant, Lisa Carver, from a decision of Judge Knight QC, sitting in the Central London County Court on 4 June 2007, in which he found that: (i) the claimant had succeeded in her personal injury claim against the defendant, BAA plc; (ii) damages were to be awarded in a sum which exceeded a payment in by £51; but (iii) the claimant was to pay the defendant’s costs after the time for accepting that payment in had expired, and no order was to be made for costs referable to a prior period covered by a previous Calderbank offer.
The claimant appealed as to costs on the grounds that, since she had done better than the payment in, the result was “more advantageous”, and there was no reason to apply CPR r 36.14 against her. The applicable rules were amended as from 6 April 2007, but it was accepted in the appeal that CPR r 36.14 applied to the facts even though the relevant payment in was made on 6 June 2006.
CPR r 36.14 provides: “(1) This rule applies where upon judgment being entered—(a) a claimant fails to obtain a judgment more advantageous than a defendant’s Part 36 offer; or (b) judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant’s Part 36 offer.”
WARD LJ said that the language of Pt 36 had resulted in a change of approach, and for both money claims and non-money claims the same questions arose under r 36.14(1), viz under (a) whether the judgment was “more advantageous” than the relevant offer, and under (b) whether the judgment was “at least as advantageous” as the offer. It was clear that in non-money claims all the circumstances had to be taken into account, and the same should apply in money claims: in particular, the rubric “more advantageous” permitted a more wide-ranging review of all the facts and circumstances of a case in deciding whether the judgment which was the fruit of the litigation was worth the fight. In the instant case, the judge was thus entitled to look at the case broadly and to find on the facts: (i) that the extra £51 gained was more than offset by the irrecoverable costs incurred by the claimant in continuing to contest the case for as long as she did; and (ii) that it was appropriate to make no order for costs for the prior period in light of the manner in which the litigation had been conducted.
RIX and KEENE LJJ agreed.
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