28th Feb 2018


Christopher Loxton (instructed by Kennedys Law LLP) for the Defendant


This is an appeal from the order of His Honour Judge Simpkiss made on 11 September 2017 at Brighton County Court concerning the costs of a quantum only trial over which he had presided on 2 and 3 March 2017. It raises an issue concerning Part 36. The appeal is brought with the permission of Walker J granted on 7 December 2017.

The Claimant had sought damages for personal injuries and associated losses suffered as a result of an incident which occurred during the course of her employment in June 2012 at Langley Green Hospital, Crawley, for which the Defendant was responsible, when she had been seriously assaulted by a patient. As indicated above, the issue at trial was the quantification of damages, liability having previously been accepted by the Defendant. In addition to damages for pain, suffering and loss of amenity, there were various consequential losses alleged, the most significant of which was a claim that the Claimant’s career as a clinical psychologist was delayed for about 6 years as a result of the assault. She had not yet qualified as a clinical psychologist and so her claim was advanced on the basis of a “loss of chance”.

I need not go into detail for present purposes, but the Judge concluded that the evidence was insufficient to make any findings that supported the loss of chance case. There were no adverse findings against the Claimant (in the sense, for example, that she had deliberately exaggerated her claim), merely that, on analysis, the evidence did not support the claim advanced.

The judge awarded £17,000 general damages and £5,488.32 special damages which, together with interest totalled, £23,315.13. The judgment giving the reasons for that decision was handed down on 24 May 2017. Consequential matters, including costs, were adjourned for future argument. I should say that it is common ground that this was not a QOCS case because it pre-dated the QOCS provisions.

Unsurprisingly, various offers were made by the Defendant at various times. It is the effect of these offers on the issue of costs that has given rise to this appeal. Each was headed “Part 36 Offer to Settle. Without prejudice save as to costs.”

Click here to view the full judgment.


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