Part 36 combined offers – when are they beaten?
Whilst the recent judgment in CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2023] EWHC 1770 (KB) (12 July 2023) makes essential reading for expert witnesses, the subsequent cost judgment of Mr Justice Ritchie in CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2023] EWHC 1905 (KB) considered what is necessary for a Part 36 offer containing lump sum and periodical payment components to be "beaten", an issue on which there was no previous authority or commentary in the White Book.
Background
The Claimant was an eight year old girl who sued the Defendant NHS Trust for damages for negligence, which resulted in her suffering cerebral palsy. The Defendant admitted that it was responsible for failing to prevent the Claimant suffering from chronic partial hypoxic ischaemia before and during her birth, which caused the cerebral palsy.
On 24 May 2023, the Claimant made a Part 36 offer to settle her claim consisting of:
- A gross lump sum of £7,000,000; and
- A periodical payments order (PPO) of £360,000 p.a. for life.
On 12 July 2023, judgment on quantum was handed down. The gross lump sum awarded by the court was lower than the Part 36 offer (£6,866,615), but the PPO award was higher (£394,940 p.a.).
The question for the court to determine was whether the damages it had awarded were more advantageous (i.e. “better in money terms”) to the Claimant than the Part 36 offer she had made.
The Claimant contended that she had “beaten” her Part 36 offer at trial, because if the PPO was capitalised into a lump sum by using the agreed lifetime multiplier used for the lump sum and added to the lump sum offered (£7,000,000), it came to a total of £14,635,600. This was less than the total capitalised lump sum value of the award that was in fact made (£15,246,292).
Combined Part 36 offers
Mr Justice Ritchie did not agree with the Claimant’s approach. As the Part 36 offer had been made as a combined offer – i.e. both a lump sum figure and a PPO figure were specified, no protection was gained unless both the lump sum and the PPO offers contained within it were beaten.
It was not appropriate to reintroduce the multiplier when considering the PPO element as the whole purpose of a PPO is to order a multiplicand only and avoid using a multiplier.
The way in which the offer had been phrased was critical. It had been open to the Claimant to make individual offers in respect of the lump sum and PPO elements, each of which could have been accepted separately. If she had taken that approach, the PPO element would have been “beaten” at trial with the resultant cost consequences. Presumably the Claimant’s litigation friend had accepted advice that there was a tactical advantage to be gained in not making separate offers.
Leapfrog appeal application regarding lost years
Notably the Claimant also sought and was granted permission to make a “leapfrog” appeal to the Supreme Court on the issue of loss of earnings in the “lost years”. Whilst adults are entitled to claim damages for their loss of earnings in the “lost years” (see Pickett v British Rail [1980] AC 136 and Gammell v Wilson [1982] 2 AC 27), in Croke v Wiseman [1982] 1 WLR 71 the Court of Appeal decided that a severely disabled child with no dependents could not make a similar claim on the basis that it was too speculative.
You may be interested in...
Training
Mock inquest training course
Legal Update
Walking the fine line: The statutory duty of candour and insurance
Legal Update - Maternity services
Improving maternity safety: Insights from MNSI’s annual recommendation report
Legal Update - Maternity services
MNSI annual report 2023/24: Key insights and future ambitions for maternity safety
Opinion - Maternity services
Enhancing care for women with ectopic pregnancies: Insights from MBRRACE-UK
Legal Update
ABC pilot: Improving maternity safety to prevent brain injuries in childbirth
Legal Update
World Patient Safety Day 2024: “Improving diagnosis for patient safety”
Legal Update
Changes to the fixed recoverable costs regime
Opinion - Maternity services
Newborns born outside of hospitals at higher risk of hypothermia during emergency responses
Legal Update - Maternity services
Introduction of baby loss certificates gives recognition to millions of bereaved families in the UK
Press Release
Landmark Supreme Court decision clarifies the extent of Doctors’ Duty of Care
On-Demand - Shared Insights
Shared Insights: Improving communication with patients and families when responding to incidents, complaints and claims
Legal Update
Personal injury discount rate in England and Wales
Legal Update
Improving patient safety incident and complaint responses to rebuild broken trust
Legal Update
Part 36 combined offers – when are they beaten?
Legal Update
Cauda Equina Syndrome and application of the new GIRFT pathway
On-Demand - Shared Insights
Shared Insights: The Patient Safety Incident Response Framework
Opinion - Maternity services
Baby Loss Awareness Week
On Saturday 15 October a wave of light swept the internet when thousands of people flooded social media with pictures of candles to remember the babies that they have lost. This event signifies the end of Baby Loss Awareness Week which aims to break the silence that is associated with baby loss in pregnancy and infancy.
On-Demand - Shared Insights
Shared Insights: Focus on emergency medicine
Opinion - Maternity services
The impact of COVID-19 on maternal deaths
HSIB published its report on Maternal deaths during the first wave of COVID-19. The report takes a closer look at the impact that COVID-19 had during the initial period of March to May 2020.
On-Demand - Shared Insights
Shared Insights: The impact of Ockenden and implementation of the IEAs from ward to Board
Opinion
Learning from Emergency Medicine compensation claims
Every year a high number of patients attend Emergency Departments (EDs) in England, often presenting with complex and wide-ranging symptoms. Many of these challenges were explored in the Getting It Right First Time Emergency Medicine Report, published in 2021.
Legal Update - Maternity services
The Ockenden Final Report – a blueprint for safe maternity care from ward to Board
The much anticipated final Ockenden report was published on 30 March 2020. The final report sets out the findings of the review into care provided to 1,486 families, and sets out a blueprint for safe maternity care.
Opinion
Paul v Royal Wolverhampton NHS Trust and Purchase v Ahmed
On-Demand - Shared Insights
Shared Insights: Preparing for 2022 – the big issues for legal teams across health and social care
On-Demand - Shared Insights
Shared Insights: Safeguarding Forum - Safe discharge and conveyance of patients
Opinion
World Patient Safety Day 2021 - safe maternal and newborn care
Given the ongoing scrutiny of maternity services following publication of the Ockenden preliminary report in December 2020, it is timely that World Patient Safety Day on 17 September 2021 has a focus on safe maternal and newborn care.
On-Demand - Shared Insights
Shared Insights: Implementing the Ockenden Immediate and Essential Actions for safe maternal and newborn care
On-Demand - Maternity services
Maternity mock inquest - film 1
Consent is often a key issue in obstetric claims and if it is relevant to the facts of the death, its likely to be an area explored by a coroner.
On-Demand - Maternity services
Maternity mock inquest - film 2
This video illustrates some of the issues that can arise when a witness is poorly prepared.
On-Demand - Maternity services
Maternity mock inquest - film 3
This film highlights the importance of creating an open and transparent culture where staff feel able to speak up will help Trusts to identify problematic practise before significant issues arise.
On-Demand - Shared Insights
Shared Insights: The Covid-19 pandemic – the challenges for in house legal teams
On-Demand - Shared Insights
Shared Insights: Key themes arising from obstetric claims and inquests
On-Demand - Shared Insights
Shared Insights: Claims update and look ahead to the issues that will shape the approach to claims in the NHS in 2021
Opinion
Increasing organisational resilience in maternity services
On 12 November 2020, the HSIB published its latest national investigation report on maternity safety - what are the likely implications for maternity services?
Legal Update
The AI will see you now: Liability issues from the use of AI in surgery and healthcare
Legal Update
Health and care newsletter - October 2020
This health newsletter talks about the focuses on topics relevant to the resolution of healthcare disputes.
Legal Update
Claims arising from death – recent developments and a refresher
In this article we explore some recent changes to claims arising from death and provide a brief refresher on how these are calculated.
Legal Update
Relationships with patients and their representatives
As a national law firm, Browne Jacobson works with healthcare organisations across the country, helping resolve patients’ disputes efficiently, fairly and with integrity.
Legal Update
In conversation with...Sian Brown: NHS Resolution’s Early Notification Scheme
Sian Brown is one of Browne Jacobson’s Partners and the head of the Early Notification Team. Find out more about Sian here.