The claimant had succeeded in her action for personal injuries, but now appealed against the awarding of costs to the defendant. The dispute had been substantialy as to the nature and effect of her injuries. She had not disclosed earlier injury to her back, and had exaggerated the injury.
Held: The appeal succeeded.
Ward LJ said ‘there may be no need to determine who has been the ‘winner’ of a particular ‘issue’. All the court needs to do is establish whether it was unreasonable for the claimant to pursue her allegation that she had suffered such pain (a) that it justified her case that her pre-existing condition was accelerated by 5 years and (b) that it was of the severity she described in support of her claim for general damages for pain and suffering. If it was unreasonable then that was conduct which the court had to take into account . . The way in which regard is to be had to that conduct is principally to enquire into its causative effect: to what extent did her lies and gross exaggeration cause the incurring or wasting of costs?’ and ‘an order for costs against the claimant is less justified where, as here, the defendant failed to alleviate its predicament by making a proper Part 36 offer and so lost the opportunity provided by the rules of recovering those costs from the claimant. The claimant’s dishonesty must be penalised. The claimant’s failure to negotiate a claim which was clearly capable of being settled must also be recognised. When I balance those factors, and attempt to do justice to both parties and to be fair to them, I conclude that the right order in this case is that there be no order for costs.’
Ward, Smith, Wilson LJJ
[2009] EWCA Civ 1256
Bailii
England and Wales
Citing:
Cited – Molloy v Shell UK Ltd CA 6-Jul-2001
Liability had been conceded by the defendant in the personal injury claim, but the defendant now appealed against the order that it should recover only 75% of its costs incurred after the date of a Part 36 payment made by it. The claimant claimed . .
Cited – Painting v University of Oxford CA 3-Feb-2005
The claimant had sought damages for personal injuries, namely injury to her back. Though she was found to have exaggerated her claim, she still recovered more than had been paid in. The defendant appealed a costs order based solely on the size of . .
Cited – Jackson v Ministry of Defence CA 12-Jan-2006
andpound;150,000 was paid into court but the claimant recovered andpound;155,000 and the judge ordered the defendant to pay 75% of the claimant’s costs. The defendant appealed. The judge had decided that when the claimant gave his evidence there was . .
Cited – Shah v Ul-Haq and Others CA 9-Jun-2009
The defendant appealed against a refusal to strike out the claimant’s action saying that the claimant had been involved in a fraud upon the court in an earlier associated claim.
Held: The Rule gave no power to strike out a claim on such a . .
Cited – Straker v Tudor Rose (A Firm) CA 25-Apr-2007
The defendants had made a Part 36 offer before the commencement of the proceedings and soon after the commencement had paid pounds 9,000 into court under Part 36. The judge awarded over pounds 11,000 and pounds 2,000 of accrued interest. Despite . .
Cited – Hall and others v Stone CA 18-Dec-2007
The claimants appealed against a reduction in their costs awards after succeeding in their claims arising from road traffic incidents. The judge had awarded them only 60% of their costs and they appealed submitting that there was no reason why they . .
Cited by:
Cited – Gregson v Hussein, CIS Insurance CA 9-Feb-2010
The claimant appealed against the level of costs awarded to him in succeeding in his claim for damages for personal injury following a road traffic accident. The court had found that though the claimant had succeeded, the substantial dispute had . .
Binding – Summers v Fairclough Homes Ltd CA 7-Oct-2010
The claimant was said to have fraudulently exaggerated the damages associated with a valid personal injury claim. The defendant argued that the claim should be struck out entirely as a punishment.
Held: The defendant’s appeal failed. The Court . .
Cited – Fairclough Homes Ltd v Summers SC 27-Jun-2012
The respondent had made a personal injury claim, but had then been discovered to have wildly and dishonestly exaggerated the damages claim. The defendant argued that the court should hand down some condign form of punishment, and appealed against . .
Lists of cited by and citing cases may be incomplete.
Costs, Personal Injury
Updated: 10 November 2021; Ref: scu.381297
