Trevor Michael Fox –v- Foundation Piling Limited [2011] EWCA Civ 790

Posted on Thursday, July 7th, 2011

C was employed by D and suffered an accident at work on 11th April 2003. D took surveillance evidence of C on 29th September 2004 showing his mobility to be generally good. C commenced proceedings in April 2006 claiming £208,000. D admitted liability. D instructed its own expert to prepare a report based on a review of documents but did not provide him with a copy of the video evidence. On 29th September 2008, D made a part 36 offer of £63,000 less CRU repayments, a net sum of £23,550.79. C attended D’s expert whereupon further video evidence was taken showing C to be generally free of disability save when approaching the clinic. D’s expert thought C’s clinical presentation exaggerated. The experts agreed that C’s spinal degeneration would have occurred in any event. C’s expert felt the period of acceleration caused by the accident to be two years, D’s expert thought one year. D withdrew its Part 36 offer and replaced it with one of £31,702.53 plus CRU repayments of £5,797.47 plus costs to 20th October 2008. C was to pay D’s costs thereafter. Damages were agreed but costs were argued before the Court, which found that D was the successful party after 20th October 2008 and should have its costs. Even if that were not correct, C’s conduct was such that he should pay the costs after 20th October 2008. C appealed. D conceded that C was the successful party but argued that the costs order should be upheld on account of C’s conduct. The Court of Appeal found that C had been dilatory but so had D. C had recovered less than claimed but that was partly due to his pre-existing condition. C had realistically accepted D’s final offer and the Judge had made no finding of misrepresentation against C, a finding of fact with which the appellate court could not interfere. D had had video evidence from an early stage but did not make a realistic offer based on it until 25th November 2009. There were no grounds for departing from the starting point set out in CPR 44.3(2)(a) that the successful party should have their costs. Appeal allowed. If D failed to make a sufficient Part 36 offer at the first opportunity then it could not expect to secure costs protection. Different considerations might arise where C was proven to have been dishonest but the judge had made no such finding in this case.

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