Brushett v Hazeldean – The Facts

A pedestrian crosses the road whilst looking at her mobile phone.  She is seemingly unaware of an approaching cyclist, who had cycled through a green light.  There is a collision, and both reportedly suffer injuries.  So why did the Judge order that the cyclist must pay the pedestrian damages and legal costs, yet the cyclist gets nothing?

Reading much of the recent press coverage of this case, one can be forgiven for thinking that this was an unusual, perhaps even unfair result.  But was there more to it?

I was the barrister instructed to represent Gemma Brushett, the injured pedestrian who sued the cyclist for damages.  In my practice I act for both claimants (those who have been injured and seek to be compensated) and defendants in a range of different types of personal injury cases.  I have acted on behalf of many more cyclists than I have pedestrians in my career so far (although I tend to do more medical negligence work than road traffic cases), and am firmly of the view that the use of green modes of transport such as cycling should be encouraged.

I accept that I am not an independent observer of the case.  But I was one of only a handful of people who were present for the 2 days of the trial, and can add some important detail to that put out in the newspapers.


The accident happened shortly after 5pm on 20thJuly 2015.  There were many pedestrians trying to make their way home from work.

The Claimant was attempting to cross King William Street towards Cannon Street.  The Defendant was cycling northbound over London Bridge and intended to cycle up King William Street.

This would have been approximately the Defendant’s view as he cycled through the light that he says was green (although there would have been a greater number of pedestrians than in this photograph).  The crossing is in the top left of the shot where the red double decker bus is.  The traffic lights are perhaps 25 metres away from the collision point at the crossing.

Screenshot 1.png

This is approximately the view that the Defendant would have had from his position on the road perhaps 5 metres away from the crossing.  The Claimant was crossing from right to left on the Defendant’s view.

Screenshot 2


The Claimant did not give oral evidence at the trial of liability.  She had been knocked unconscious by the impact, and suffered concussion with post-traumatic amnesia such that she had no recollection of the accident itself.  Her witness statement described that this was her usual walk from the office to the station to go home.

The police attended the scene after the accident and spoke to 5 witnesses, including the Defendant.  It is important to recognise that the police did not prosecute the Defendant or the Claimant.  In his statement to the police, the Defendant stated that he:

 “…..can see people crossing at the junction of King William Street with Cannon Street so I have sounded my airhorn on my bike, which caused people to part and leave a gap in the middle of the road.  I continued up towards King William Street, but due to the people in the middle island and still crossing I was positioned on the right hand side of my lane, close to a yellow bollard on the middle island.  I believe I may have been travelling at 10-15mph.  As I was approaching this island where most people had stopped, I saw a blond female who was in the middle of the road crossing onto the pavement in the direction of Cannon Street.  She turned to look at me and instead of continuing forward in the direction she was walking she stopped and stepped back into the gap I was travelling into.  I shouted out to her “No” as I was only 2-3 metres away from her.  I put on my brakes but could not avoid colliding with her…..”

The police spoke to 2 witnesses who were standing in the central island at the time of the accident.  They both said that the Claimant walked out from the central island, and that she stepped into the path of the cyclist.  One of these witnesses said that the Claimant wasn’t looking for oncoming traffic. They both blamed the Claimant for the accident.

Another witness was on the left hand pavement.  They said that they heard the “loud horn”and the Defendant shout something “to which the female stepped out”.  There was no comment from this witness as to who they thought was to blame.

The final witness was Mr H.  He had been cycling over London Bridge and had waited at the lights before it turned to green.  He told the police that he was overtaken by the Defendant after the traffic lights. He said that the Defendant sounded his airhorn at that point and“cycled towards a large number of pedestrians who were still crossing the road……..The cyclist did not slow down and I heard him shout something towards the pedestrians.  I then saw the cyclist’s bike strike a lady on the left side knocking her to the ground…….”

Mr H considered that the Defendant was riding too fast towards the pedestrians.  He felt that the Defendant was to blame.

None of the statements given to the police on the day of the accident, including the Defendant’s, mention that the Claimant was using her mobile phone.

The police investigator who attended the scene and spoke to all of the witnesses concluded that both the Claimant and the Defendant were to blame.


The Defendant was unrepresented when he drafted his own Defence.  It was thorough and addressed each aspect of the Claimant’s claim.  It did not expressly plead contributory negligence.

The Defendant instructed solicitors who came on the record in October 2018.  In their Directions Questionnaire filed that month, they sought a direction for an amended Defence to be filed, “with a counterclaim if advised to do so”.

No application for permission to serve an amended defence was made, and no counterclaim was ever brought.

In advance of trial the Defendant filed and served a hearsay notice confirming that he intended to rely on the 4 other witness statements given to the police as ‘evidence of truth of the matters stated’.  This included the police statement of Mr H.  However, by this time the Claimant had already obtained a witness statement from Mr H, who would be called by the Claimant to give live evidence at trial.

The Claimant made an application for summary judgment on the basis that the Defendant’s hearsay notice adopted Mr H’s statement to the police as being the truth.

No attempts were made to bring any of the 3 other witnesses to Court. It remains unclear whether they had a clear and unobstructed view of events, and whether their focus was on the Claimant or the Defendant.  More details of their statements to the police are set out from paragraph 22 of my note of the judgment.


On the morning of the trial, the Claimant’s application for summary judgment was heard.  It was refused.

The Defendant made an application to plead contributory negligence in the alternative.  This was allowed.

The Claimant relied on Mr H as her only witness on the issue of liability. Mr H attended trial and was cross examined by the Defendant’s barrister.

Mr H’s evidence included a voice memo that he had recorded on his mobile phone minutes after the accident in order to provide a more detailed account than that recorded by the police.  His witness statement expanded upon his police statement.  He described in Court that there was a ‘throng’ of pedestrians 5 or 6 deep crossing the road, and estimated that there were 50 people in this group.  He described that he slowed his bicycle because he felt that it was unsafe to proceed with people still crossing.

Mr H said that he was overtaken by the Defendant, who was travelling at around 20mph and had sounded his airhorn.  Mr H considered that the Defendant accelerated as he approached the crossing.  He saw the Defendant collide with the Claimant who was crossing the road.  He remained of the view that the Defendant was to blame.

The Defendant gave evidence at trial.  No other witnesses gave live evidence in support of his case.  The Defendant’s evidence at trial included that:

  • He was knocked unconscious as a result of the collision, but no evidence had been obtained to ascertain whether this had caused any ill-effect on his memory.
  • He was approximately 20 metres away from the crossing when he saw a group of pedestrians crossing the road. He said that the group of pedestrians included the Claimant.
  • It appeared to him that the pedestrians were unaware that there was oncoming traffic.He was aware that there were no pedestrian red man/green man lights at the crossing.
  • ‘Many’ of the pedestrians heeded the sounding of his 115db airhorn, but the Claimant and others continued to cross the road.
  • He accelerated up to 10-15mph after he sounded the airhorn, when people were still in the road.
  • The Claimant was near to the left hand side of the crossing (as he was looking at it) when she looked up from the mobile phone that she had been reading, panicked, and ran or stuttered back across the road in the direction of the central island.
  • He called out loudly, applied his brakes, and attempted to swerve to the right, but was unable to go further as he would have hit the pedestrians waiting on the island.


In submissions, reference was made to speed conversion tables.  10mph = 4.5 metres per second, 15mph = 6.7 metres per second, and 20mph = 9 metres per second.

This was relevant because if the Defendant was travelling at around 20mph as Mr H contended, he would have travelled the approximate 20 metres distance to the Claimant in about 2.2 seconds.  If he was travelling at an average of 12.5mph, he would have travelled the approximate 20 metres distance in about 3.6 seconds.

The Highway Code recommends that cyclists use a bell.  There is no reference to airhorns (they are not expressly prohibited).


My note of the judgment on liability is here.  It is important to understand that this was an extempore judgment given at the end of a long and stressful day in Court.  District Judge Mauger is an experienced, fair and excellent judge.  She has been hearing these types of cases for around 10 years, first as a Deputy District Judge, and then as a full time District Judge since 2014.

My view is that had there been time to prepare a full written judgment, there may well have been a different focus on certain parts of the evidence, but that the ultimate result would have been the same.

My typed note of the judgment will not be a 100% accurate transcription, but it should be pretty close to it.

The trial of the quantum of damages was heard the following week.  It was found that the Claimant suffered a head injury involving concussion, dental injuries including a change to her bite, and facial scarring.  The Claimant was awarded £4,000 in general damages for pain, suffering and loss of amenity, and £161.79 in special damages (reduced from a total award of £8,323.57 for contributory negligence).

The summary assessment of costs is to be dealt with at a further hearing. The Claimant had been awarded more in damages than 2 previous Part 36 offers she had made in attempts to settle her claim without going to trial.


There was more to this decision than the many of the newspaper articles conveyed.

Based on the judge’s finding that the Claimant was using her mobile phone, it was absolutely correct that she was found to have significantly contributed to the accident.  However, the Defendant himself had conceded that he had accelerated towards a crossing which wasn’t clear of people.

If any wider good has come from this case it is that the publicity may encourage cyclists to take out insurance to protect themselves in the event that their riding causes someone to suffer injury.



Brushett v Hazeldean – Note of Judgment

This is my note of an extempore judgment given at the end of a long and stressful day in Court.  My typed note of the judgment will not be a 100% accurate transcription, but it should be pretty close to it:

  1. This is my decision in the claim. In this judgment I deal with liability only. This matter comes before me as a fast track trial in respect of an accident on 20 July 2015 at 5pm.  The accident took place in central London at the junction of King William Street and Cannon Street.  The Claimant was at a pedestrian crossing.  The Defendant was a cyclist cycling along King William Street.  The Claimant brings a claim for personal injury and she bears the burden of proof; she must satisfy me that it was more likely than not that the accident happened in way she said it did.


  1. The Claimant sustained head injuries and has no recollection of the accident at all. She has not given evidence herself on liability.  She relies on an observer who was another cyclist, Mr H.


  1. I heard evidence from Mr H for the Claimant, and from the Defendant himself. In addition, there was a Civil Evidence Act notice.  The police were called and 3 other witnesses gave evidence to the police. They have not been called to give oral evidence, but they have given detailed statements.  The Defendant relies on them.


  1. Those 3 women did not give evidence before me and I must be careful as to the weight I give to their statements. They have not been subject to detailed challenge by cross examination.


  1. The evidence of Mr H was that he was a regular commuter cycling home. He was travelling north over London Bridge intending to continue onto King William Street. The structure of the junction meant that this was the second exit available to him, which is at approximately 10:30 on a clock face.


  1. There are 3 lanes of traffic going north. There are 2 lanes for traffic turning right, and there is 1 lane for turning left or continuing onto King William Street.  Mr H was stuck on a red light behind cyclists who were turning right.  The lights turned green, and sometime after he heard a loud horn.  He couldn’t recall if he had heard a horn before or after being overtaken by the Defendant.


  1. He says that he saw the Defendant approach pedestrians. There were a large number.  He described ‘a throng’ trying to cross King William Street and he felt that he had no reasonable choice other than to stop for the road to clear.  He felt that the Defendant had chosen to sound the horn and shout.  He doesn’t recall what said or if more than one thing was said.  He felt a sense of inevitability that the Defendant would cycle into someone, and he then saw the Defendant cycle into the Claimant.


  1. Mr H said that the Defendant had accelerated and used his horn rather than braking and stopping. He said that the Defendant had made a mistake in so doing.  He went further and said that the Defendant was aggressive and that he had gone and challenged the Defendant by asking him what he was trying to prove.


  1. Mr H said however, that he had not seen the Claimant in any detail and could not say if she was looking at her phone or whether she looked for traffic, nor whether she responded to the horn.


  1. In addition to the statement he gave to police and the witness statement prepared for these proceedings, he also apparently at the time made a voice recording that was played to me. In it, he sets out what happened.  He is heard to be breathless, and I assume it was very shortly after the incident.  He said in the course of the recording that it was a contemporaneous record as the police were not thorough.  He described in derogatory tones that the Defendant was aggressive, reckless, arrogant, and had little remorse.  He said that the Defendant felt that he was more important than everyone else.  The tone of the voice recording was extraordinary.  It sounded as if Mr H had personally engaged in what happened rather than being an independent witness.  I don’t suggest he knew either party, and he said he felt shaken.  The tone was surprising.


  1. Mr H himself, when listening to the recording, said it was awkward and that it was a sanctimonious version of himself. It sounded like it was self-serving, with something in mind.


  1. Apart from the voice recording, he presented as doing his best. The incident was several years ago. It was clear that he couldn’t remember some details.  He was doing his best to assist the Court over an incident that was some years ago.


  1. The Defendant gave evidence. He was an experienced cyclist.  His cycled to work for his commute and to ride at the weekend.  Coming down London Bridge, he was freewheeling to lights which were red.  He slowed, allowing them to turn to green.  He believed he was the first across the lights, and believed that there were no cars or bikes ahead of him.


  1. Vehicles attempt to turn right, and his experience was that the junction was always blocked up. He said he could see from the point that he approached lights on the London Bridge side of the junction that there were pedestrians crossing.  Therefore, he sounded his horn.  This was an airhorn equivalent to a car horn, and is designed to be heard over headphones and by those in cars.


  1. The Defendant said he continued freewheeling into the junction.Pedestrians appeared to notice the horn. Once they cleared, he pedalled again and accelerated as it was uphill on the other side of the junction.  The Claimant was crossing the road on her mobile phone, and at some point when he was close to her, she looked up and was startled.  At the point she looked up she was almost all the way across the road and nearing the pavement on the left side, approximately where the letter ‘T’ is on the ‘LOOK RIGHT’ writing on the pavement.


  1. The Claimant looked up. She was startled.  Rather than continue onto the pavement, she went back into his path towards the central reservation.  He shouted “no”.  The Defendant was towards the right side of the road because he knew that pedestrians had stopped, and so he was keeping clear of the pavement on his left.  He braked, veered to the right, but couldn’t go further. He said he could do nothing to avoid the collision.


  1. The Defendant denies liability, or in the alternative says that the Claimant was contributorily negligent.


  1. As to the manner in which the Defendant gave evidence, he was consistent in all important respects from the evidence he gave to the police through to the Defence that he drafted himself and his witness statement. It was submitted that there was a discrepancy between the police statement and witness statement and Defence, in that he told the police that rather than the Claimant turning in the road and running back, “she turned to look at me and instead of going forward stepped into the gap…….”  I do not regard that as a material inconsistency. There were a number of years in between the statements.  The key point was the same.  The Claimant had been walking to his left, but then went back the other way.


  1. He was consistent throughout that he sounded his horn well in advance of the pedestrians, i.e. from about the white line. There was a discussion of metres, but nobody had measurements and the photographs were not wholly reliable.  It was quite some distance.


  1. He sounded his horn in good time, and most pedestrians moved out of the way either by stopping or getting to the other pavement. It was put to him that he was lying.  Throughout he was unflustered, courteous and mild mannered.  When the opportunity arose, he described that he had felt concerned as to way he was treated by Mr H after the accident.  Whilst the Defendant was also injured in accident and was helped to side of road, he said that Mr H shouted at him and that police asked Mr H to move away.


  1. None of this was put to Mr H during cross examination, nor was it in the Defendant’s witness statement. Mr H volunteered some of this.  My impression of the Defendant, in his manner and consistency, was that it was evident he had thought of how pedestrians were not aware of traffic coming as there was no signal on the crossing.  He gave every impression of being a reasonable road user.  This was difficult to square with the picture presented by Mr H.  There was no evidence from the Claimant herself of what she was doing.  There was the troubling account from Mr H, and the consistent report from the Defendant.


  1. I look to see if I place any weight on the statements of other witnesses. There were 3 statements that were remarkably consistent:


  1. SB was standing on the island in the middle of the road, heading towards Cannon Street station. “A young girl to my left however continued to cross the road was struck by a man riding a bicycle which had proceeded from traffic coming from London Bridge.  The young girl did not look to her left. There was another cycle travelling nearby to the one that hit the girl.  The girl was not looking where she was going.  I feel she was in the wrong.  The cyclist did try to avoid her.  The girl was knocked unconscious for a few minutes.  The cyclist came off his bike during the collision and fell to the road holding his shoulder.”


  1. LH was standing on the island in the middle of the road, heading towards Cannon Street station and was friends with SB. “SB and I crossed to the middle where we waited on the island as cyclists were coming from the direction of London Bridge.  As we stopped, a young girl walked past me on my left into the road and into the path of an oncoming cyclist.  I recall the cyclist shouting something just before he collided with her but I cannot say for certain what he shouted……….”


  1. LT was walking southbound on the west pavement, “approaching the junction of Cannon Street when I heard a loud bike horn, which came from the area of the traffic lights. I looked forward and saw a male cyclist wearing a red/white top, black shorts. The cyclist shouted to which the female stepped out and collided with the cyclist to which they both fell…….”


  1. 3 independent observers who did not appear for questioning agree that the Claimant was at fault. LT says ‘the female stepped out’.  The language suggests that she felt it was the Claimant’s fault.


  1. Whose fault is it? It seems to me that the Defendant owed a duty to other road users to drive with reasonable care and skill.  On his own account the junction was not completely clear.  There were pedestrians on the right, but still some in the carriageway.  He anticipated they would continue onto the pavement.  It seems to me that someone approaching a crossing with pedestrians who are crossing, even when it is their right of way, cannot safely pass the pedestrians (on the crossing) without giving way.  The Claimant was established in the road, the Defendant had right of way.


  1. The Defendant did fall below standard to be expected of a cyclist as he did make a judgment call that it was clear to proceed when in fact there were pedestrians in the carriageway. He had some understanding that when pedestrians are established on the road they must be given way.  He fell below the standard to be expected.


  1. However, the Claimant’s conduct was also an important contributory factor. The Defendant was clear that she was looking at her phone.  None of the other witnesses mention the phone.  SB says in particular that the Claimant did not look to left and was not looking where she was going.  The other 2 women say she stepped out or that the collision was unavoidable.  Mr H said that he didn’t see the Claimant’s actions in particular.  The conduct of the Claimant must have contributed to accident.


  1. I find that the Claimant was looking at her phone, and I accept the account of the Defendant that she turned and went back. None of the other witnesses saw that.  Mr H said he didn’t see her at all.  All others simply say she stepped out, but the Defendant was focussing on her so his account is the most reliable.  The Claimant ‘stuttered back’.


  1. How to apportion? It seems to me the appropriate finding is 50/50, they are equally responsible.  The reason for that is that the Claimant must have equal culpability if she was crossing the road without looking.  The Defendant was someone who could see pedestrians on the crossing still, albeit he thought they were planning to clear.  A cyclist must be prepared for the pedestrians to behave in unexpected ways.



Res Ipsa Loquitur In Clinical Negligence

The maxim res ipsa loquitur or ‘the thing speaks for itself’, is a long-standing rule of evidence more commonly utilised in other areas of personal injury law.  In a PI setting it has been applied in a wide range of cases including objects falling from buildings, malfunctioning machines, collapsing cranes, and stones in buns.

In clinical negligence, claimant practitioners often bolt-on an assertion that res ipsa loquitur applies when drafting letters of claim or pleadings.  This is often seen in cases where negligence appears more likely on the bare facts.

However, there are strict controls on the application of res ipsa loquitur.  Three conditions are required to be met[1]:

  1. The event is one that would ordinarily not occur in the absence of negligence/fault;
  2. The thing causing the damage must have been under the control of the defendant;
  3. There is no evidence as to why or how the accident occurred.

Once those three conditions are met, the court may draw an inference of negligence against the defendant.  The burden of proof then shifts to the defendant, who must prove that the accident was not caused by their negligence.  Where the defendant cannot discharge that burden, a claimant may succeed in their claim without proving precisely how their injury was caused.


Its use in clinical negligence gained some traction before Bolam and BolithoMahon v Osborne [1939] 1 All ER 535, is an early example of the application of res ipsa loquitur in a case where a surgical swab had been left inside a patient’s body.

In Clarke v Worboys (1952) Times, 18 March, CA, a patient noticed burns on her buttock shortly after surgical excision of a breast tumour.  The surgery involved cauterisation.  The Court of Appeal held that this was a case where res ipsa loquitur applied.  The outcome was not one that would ordinarily occur in the absence of negligence, and the surgical team were unable to explain how the injury was caused.

In Cassidy v Ministry of Health [1951] 2 KB 343, Denning LJ succinctly summarised the maxim’s application to clinical negligence cases: “I went into hospital to be cured of two stiff fingers.  I have come out with four stiff fingers and my hand is useless.  That should not happen if due care had been used.  Explain it if you can.”


Post-Bolam, its use waned.  In Delaney v Southmead Health Authority [1995] 6 Med LR 355, Stuart-Smith LJ said that he was doubtful whether res ipsa loquitur would be of assistance in medical negligence cases, where unexpected results often occur in the absence of negligence.

Glass v Cambridge Health Authority [1995] 6 Med LR 91 is a rare example of res ipsa loquitur surviving Delaney.  Here, an otherwise fit and healthy 35 year old underwent an exploratory laparotomy, during which the oximeter alarm went off.  It was considered to be a false alarm and switched off.  Later, the patient went into cardiac arrest during surgery and suffered brain damage.  The Court of Appeal held that res ipsa loquitur applied, and that the defendant had not discharged the reversed burden.

Further doubt of the application of res ipsa loquitur in clinical negligence cases was expressed by Hobhouse LJ in Ratcliffe v Plymouth and Torbay Health Authrity [1998], where it was observed:

“Res ipsa loquitur is not a principle of law and it does not relate to or raise any presumption. It is merely a guide to help identify when a prima facie case is being made out. Where expert and factual evidence is being called on both sides at trial its usefulness will normally have been long since exhausted. 

However, in the same Court of Appeal case, Brooke LJ (with whom both Hobhouse LJ and Sir John Vinelott agreed) reviewed a number of cases concerning the application of res ipsa loquitur in clinical negligence and stated the following principles:

“(1) In its purest form the maxim applies where the plaintiff relies on the res (the thing itself) to raise the inference of negligence, which is supported by ordinary human experience, with no need for expert evidence.

(2) In principle, the maxim can be applied in that form in simple situations in the medical negligence field (surgeon cuts off right foot instead of left; swab left in operation site; patient wakes up in the course of surgical operation despite general anaesthetic).

(3) In practice, in contested medical negligence cases the evidence of the plaintiff, which establishes the res, is likely to be buttressed by expert evidence to the effect that the matter complained of does not ordinarily occur in the absence of negligence.

(4) The position may then be reached at the close of the plaintiff’s case that the judge would be entitled to infer negligence on the defendant’s part unless the defendant adduces evidence which discharges this inference.

(5) This evidence may be to the effect that there is a plausible explanation of what may have happened which does not connote any negligence on the defendant’s part. The explanation must be a plausible one and not a theoretically or remotely possible one, but the defendant certainly does not have to prove that his explanation is more likely to be correct than any other. If the plaintiff has no other evidence of negligence to rely on, his claim will then fail.

(6) Alternatively, the defendant’s evidence may satisfy the judge on the balance of probabilities that he did exercise proper care. If the untoward outcome is extremely rare, or is impossible to explain in the light of the current state of medical knowledge, the judge will be bound to exercise great care in evaluating the evidence before making such a finding, but if he does so, the prima facie inference of negligence is rebutted and the plaintiff’s claim will fail. The reason why the courts are willing to adopt this approach, particularly in very complex cases, is to be found in the judgments of Stuart-Smith and Dillon L.JJ. in Delaney [see P181 supra].

(7) It follows from all this that although in very simple situations the res may speak for itself at the end of the lay evidence adduced on behalf of the plaintiff, in practice the inference is then buttressed by expert evidence adduced on his behalf, and if the defendant were to call no evidence, the judge would be deciding the case on inferences he was entitled to draw from the whole of the evidence (including the expert evidence), and not on the application of the maxim in its purest form.”

Unlike Hobhouse LJ, Brooke LJ considered that expert evidence would serve to strengthen a res ipsa loquitur argument where the expert confirmed that the result would not ordinarily occur in the absence of negligence.  Brooke LJ also explained that any non-negligent possible explanation would have to be greater than merely theoretically or remotely possible.

Modern Compromise?

In more recent times there have been a number of cases in which res ipsa loquitur or similar principles were held to apply.

Thomas v Curley [2013] EWCA Civ 117 concerned a common bile duct injury sustained during laparoscopic cholecystectomy.  In what was described as ‘an uncomplicated operation’, injury was caused in an area other than that where the operation took place.  The Court of Appeal held that this fact “called for an explanation as to how that might have occurred in the absence of negligence.”  Despite this feature, the Court of Appeal went on to say that this approach “has nothing to do with the reversal of the burden of proof and nothing to do with res ipsa loquitur.”  It was held that negligence had been proved directly by the claimant.

A similar approach was taken by Jackson LJ in O’Connor v The Pennine Acute Hospitals NHS Trust [2015] EWCA Civ 1244.  Here, it was held that whilst the defendant had not proffered any plausible explanation for how an injury could occur in the absence of negligence, this did not reverse the burden of proof, or invoke res ipsa loquitur.  Jackson LJ did state that the defendant’s failure to provide an explanation was a matter that the trial judge was entitled to take into account, which supported the finding of negligence against the defendant.

Jackson LJ did not go so far to say that the circumstances called for an explanation by the defendant.  However, his approach is virtually one of drawing an inference of negligence because of the absence of explanation by the defendant.

It is difficult, if not impossible, to distinguish Court of Appeal’s ‘calling for an explanation’ approach in Thomas, with Denning’s approach in Cassidy.  Requiring the defendant to explain anything must at least amount to a modification of the ordinary burden of proof.

Similarly, Jackson LJ’s ‘taking into account’ of the lack of plausible explanation by the defendant, is at least in part an inference of negligence.

Surgical cases can be more evidentially challenging for claimants.  They will usually not have witnessed events because they have been under general anaesthetic.  Often the surgeons are unaware of complications until after surgery.  Where an unexpected surgical outcome occurs in these circumstances, claimants will often find it useful to advance an alternative case on a res ipsa loquitur footing.

Alternatively, an unexpected outcome may be said to call for an explanation (Thomas).  Or, if the defendant fails to put forward a more than theoretically possible explanation, this may itself be a factor which goes to prove negligence, or allows negligence to be inferred (O’Connor).


A final note on pleading res ipsa loquitur.  The prevailing view is that it is not necessary to plead the doctrine itself, however, the claimant must allege and prove the facts that allow the inference to be drawn[2].

It is likely to assist claimants hoping for a judge to adopt a Thomas or O’Connor approach, to clearly set out that the facts that require a more than theoretically possible explanation by the defendant.



[1] Scott v London and St Katherine’s Docks [1861 – 73] All ER Rep 246

[2] Scott and Bennett v Chemical Construction (GB) Ltd [1971] 3 All ER 822

June – August 2017 Liability Judgments

I’ve taken a look at some recent liability judgments, and one Court of Appeal case.  Whilst each case turns on its own facts, many of the judgments illustrate how the courts approach resolving questions of fact on the strength of the medical records, and both the lay and expert witness evidence.


JRM v King’s College Hospital NHS Foundation Trust [2017] EWHC 1913 (QB)

In a case where a vascular spinal injury had been suffered at birth, it was alleged that there had been a delay in delivery arising out of a failure to note the mother’s pain, elevated CRP, and producing offensive liquor.  It was also alleged that there was a negligent use of forceps.

It was agreed that there were two possible causes of the injury; one being negligent use of forceps in the OL position, and the other by an embolus.  The Trust maintained that the mother had been in the OA position. Mobile phone photographs taken after birth showed that the child had bruises to his head, face and body.

The claimant failed on the delay in delivery allegation, but succeeded in proving that the mother had been in the OL position when forceps were used.  Gilbart J expressly rejected the evidence of the treating doctors as to the position of the mother, noting that one doctor’s 2016 witness statement contained details not present in a 2009 statement.  Gilbart J also criticised the defendant’s failure to call the other staff present at the delivery as witnesses.

This case highlights the importance of presenting comprehensive evidence to prove asserted facts.  The claimant’s mobile phone photographs showed bruising in a number of areas which were argued as being consistent with their case on mechanism of injury.  The defendant’s failure to call certain witnesses, as well as inconsistencies between the 2009 and 2016 witness statements counted against them.


Dyson v Heart of England NHS Foundation Trust [2017] EWHC 1910 (QB)

A 65 year old woman was admitted for a right total knee replacement, but died 6 days later as a result of untreatable intra-cerebral bleeding following a dose of clexane for a suspected pulmonary embolism.  The claimant’s expert considered that there was a very low possibility of PE, with a more likely diagnosis of atrial fibrillation.  The defendant’s expert also considered that there was a low chance of PE, but considered that it could not be excluded.

The defendant’s expert’s evidence was preferred.  The claimant’s expert was considered to have been too reliant on his own clinical judgment, and unwilling to consider other bodies of opinion.


Lane v (1) Worcestershire Acute Hospitals NHS Trust (2) University Hospitals Birmingham NHS Foundation Trust [2017] EWHC 1900 (QB)

The claimant underwent an angioplasty, but developed ischaemia in her right arm.  She was taken back to surgery to reperfuse the limb, but the clot recurred.  This resulted in a third operation, however, gangrene developed and the claimant ultimately required amputation of her arm.

The claimant alleged that there was a negligent 19 hours delay in undertaking the second surgery, and that the second surgery should have included thrombectomy and angiography.

The defendant argued that both claimant’s experts’ use of a form of words encompassing the Bolam and Bolitho tests, did not represent their own words or opinions.  Conversely, the claimant argued that the defendant’s expert did not correctly state the legal tests.  Both criticisms were rejected by Edward Pepperall QC sitting as a deputy High Court judge.

The claimant’s vascular expert was criticised for identifying a failure to perform a fasciotomy when the claimant did not have compartment syndrome.  The defendant’s experts’ views were that some surgeons would have performed surgery on the claimant sooner, and may have performed alternative procedures, but that the approach taken by the treating doctors was not Bolam or Bolitho unreasonable.  This evidence was preferred by the judge.

This case illustrates the importance of providing an expert who may have asserted an irrelevant or inapplicable view, an opportunity to refine their opinions prior to service.


Jabang v Wadman and others [2017] EWHC 1894 (QB)

A previously fit and healthy claimant awoke one day with severe pain across his upper back.  He saw several GPs over 3 months, and was eventually diagnosed with spinal tuberculosis.  The claimant succeeded in his claim against only one GP in respect of the second consultation, where it was alleged that there was a failure to refer for an x-ray or MRI scan.

The claimant had seen the same GP two weeks earlier when he first developed back pain.  The GP notes recorded that the same pain was “ongoing” at the time of the second appointment.  The trial was held some 6 years after the events, and all witnesses had trouble recalling the details.  The GP’s evidence was that he had a clear recollection of the appointment and that the claimant had described pain on the right side of his back, rather than the spine.  There was said to have been inconsistency between the GP’s oral evidence, the notes, and physiotherapy referral which recorded “thoracic back pain radiating around chest.”  It was held that the failure to refer for an x-ray of the thoracic spine on that occasion was negligent.

On the other occasions, the claimant’s evidence was not sufficiently reliable, and the symptoms with which he presented to the other GP defendants were different.

The first GP’s defence was undermined by subtle inconsistencies in his evidence, the medical records, and the referral letter.  The GP’s evidence that he could clearly recall the appointment despite the passage of 6 years was not accepted.


Shaw v (1) Kovac (2) University Hospitals of Leicester NHS Trust [2017] EWCA Civ 1028

The Court of Appeal held that there could be no free-standing award, or separate head of loss, for the loss of personal autonomy in a claim for failing to provide informed consent.  It was held by the Court of Appeal that if the patient’s suffering was increased by their own knowledge of an invasion of personal autonomy, this could be reflected in an increased general damages award for pain, suffering and loss of amenity.


Giles v Chambers [2017] EWHC 1661 (QB)

The claimant alleged that there had been negligent performance of liposuction.  Following treatment, her legs appeared to subside, leaving an uneven, bumpy and mottled appearance, with asymmetry in her hips.  In places, there was no fat below the skin; just muscle and bone.  The defendant argued that the result was a non-negligent consequence of the ‘highly contoured’ or ‘sculptured muscle’ look that they maintained the claimant had requested.  The claimant disputed that this was her request.  The consultation notes did not record the amount of fat to be removed.  A ‘total cost’ document referred only to general rather than high definition liposuction.

The claimant relied upon an eminent plastic surgeon as their expert.  The defendant relied upon a practitioner with only general medical training.  That expert knew the defendant personally, and leased a clinic room from her.

Judgment was given in favour of the claimant, with the claimant’s lay and expert witness evidence preferred.


Macaulay v (1) Karim (2) Croydon Health Services NHS Trust [2017] EWHC 1795 (QB)

The claimant experienced flu like symptoms.  He was also constipated and struggling to pass urine.  His GP prescribed antibiotics, however, 2 days later an ambulance was called after he developed joint and perianal pain, and had become weak.  He arrived at A&E at 9:30am, and a request for blood tests was made at 2:30pm.  However, he left at around 4:30pm, before the blood tests were undertaken.  He went on to develop sepsis and required multiple amputations.

Much of the dispute was on the aetiology of the infection, for which the judge preferred the claimant’s expert evidence.  The judge found a system error meant that the blood tests were not undertaken by 3:30pm as they should have been, and that the A&E doctor did not communicate the importance or significance of the blood tests to him at 2:30pm.  But for the system error, and but for the failure to inform the claimant, blood tests would have led to a scan being undertaken later that afternoon, which would have resulted in an earlier diagnosis and treatment.

The Trust’s argument that the decision in Darnley meant that the claimant was responsible for his own actions upon leaving A&E was rejected.


What amounts to a system failure?

In my previous post I discussed the framework which imposes duties under Article 2 ECHR.  Provided there is an arguable breach of any of the substantive duties, an Article 2 Inquest will be ordered.

This post considers what amounts to a breach of the general duty (otherwise known and referred to as a ‘system failure’).  It is a subject that has received close attention in the courts.

The general duty requires state bodies to have in place systems, protocols and procedures to protect the lives of people within its control.  A person may die whilst in the state’s system, but in order for there to be a breach of the general duty imposed by Article 2, it must be established that the failure was in the system itself, not the operation of the system.

R ex parte Middleton v HM Coroner for the Western District of Somerset[1] concerned the suicide of a serving prisoner.  In a decision subsequently endorsed by the House of Lords, the Court of Appeal distinguished between individual negligence and system failings:

“We offer two illustrations, which demonstrate the distinction we have in mind. On the one hand, the system adopted by a prison may be unsatisfactory in that it allows a prisoner who is a known suicide risk to occupy a cell by himself or does not require that prisoner to be kept under observation. On the other hand, the system may be perfectly satisfactory but the prison officer responsible for keeping observation may fall asleep on duty.”

Although it is likely that there will be an overlap between individual and systemic neglect, identifying and having regard to this distinction is important when trying to establish that there has been a system failure

The general/systemic duty imposed by Article 2 includes requirements that state bodies adopt general measures to employ competent staff and to devise appropriate systems of work.  In the absence and/or breach of such measures there will be an arguable breach of Article 2.  This duty was explained in Mitchell v Glasgow City Council[2]:

“The authorities must therefore take general measures to employ and train competent staff and to adopt appropriate systems of work that will protect the lives of the people for whose welfare they have made themselves responsible.  These are general obligations, not directed at any particular individual, but designed to protect all those in the authorities’ care.  If, however, an authority fails to fulfil one of these obligations and someone in their care dies as a result, there will be a violation of his or her article 2 Convention rights.”

The general duty goes wider than systems of recruitment and training.  The case of R (on the application of Humberstone) v Legal Services Commission[3] concerned a number of allegations of negligence, including that flaws in the system caused there to be a delay in dispatching an ambulance The facts of the case are discussed at Paragraph 69 of Smith LJ’s judgment:

“The only allegation which could be said to entail any possibility of systemic failure by the state is that the ambulance took a long time to arrive.  Until shortly before the hearing in this Court, there was no evidence that the Ambulance Service was under-provisioned or that its operational systems were inappropriate.  However……… it appears that there was some delay in despatching an ambulance.  There appear to have been two possible explanations for that delay.  One is that all ambulances save one were busy and the only ambulance not actively occupied was not available because the crew were on a meal break.  The other explanation is that the person who took the call and who despatched the single paramedic did not realise that a double-manned ambulance was or would be required as well………….no attempt had been made to despatch an ambulance until the single paramedic telephoned until control from the house to ask if the ambulance was on its way.  It was not and it took a further 6 minutes before an ambulance was despatched.  It arrived 5 minutes later.”

The applicability of Article 2 to the above facts is discussed at Paragraph 70:

“I am persuaded that this evidence, not previously available, does disclose sufficient grounds for concern about the resources and operational systems of the Yorkshire Ambulance Service as to engage the article 2 obligation proactively to undertake an enhanced investigation.”

The duty has also been considered by the House of Lords in the context of the suicide of a mental health patient within the NHS[4]:

“…….. if a mental hospital had established an appropriate system for supervising patients and all that happened was that, on a particular occasion, a nurse negligently left his post and a patient took the opportunity to commit suicide. There would be no violation of any obligation under article 2, since the health authority would have done all that the article required of it…..”

The courts have repeatedly warned against dressing up ordinary negligence as a system error.  Just because a doctor or a nurse, or indeed several clinicians have not acted competently does not mean that the particular NHS Trust has failed.  Provided the Trust employs ‘general measures’ to recruit and train their staff to be competent, this is sufficient to discharge the duty even if one or more of their recruits acts negligently.

An example of this is found in  R(Takoushis) v HM Coroner for Inner North London[5].  Where a schizophrenic patient was not seen within the 10 minutes envisaged by the triage system, the Court of Appeal found this not to amount to a system failure.  It was not the system that was to blame, it was the individual lack of compliance with the system.

Identifying an arguable system failure requires a simple distinction.  As put by Sir Anthony Clarke, MR, at Paragraph 51 of Takoushis there are three possibilities where a patient with the state system is harmed by some shortcoming:

i. That the system was a reasonable and adequate one, but that it was not properly operated/implemented on the day in question;

ii. That the system was properly operated/implemented, but there was a failure in the system itself;

iii. That there were both failures in the system and its implementation.

Only if there is an arguable system failure will an Article 2 Inquest be ordered.

[1] [2002] EWCA Civ 390; [2004] UKHL 10

[2] [2009] 1 AC 874 para 66

[3] [2010] EWCA Civ 1479

[4] Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74

[5]  [2005] EWCA Civ 1440


The scope of an inquest which considers circumstances where the death may have been caused by ‘ordinary medical negligence’ (i.e. an inquest in which Article 2 is not invoked) is limited by Rule 36 of the Coroners Rules 1984 to ascertaining:

(a) who the deceased was;

(b) how, when and where the he/she came by their death;

(c) the particulars required to enable registration to take place.”

An Article 2 inquest has enhanced scope which requires the Coroner to ascertain the additional information ‘(i) how the deceased came by his death, and (ii) in what circumstances’.

Further, if the Article 2 duty is triggered in respect of one state party, the conduct of any other state parties (e.g. GPs and ambulance service) involved in the death will receive equal scrutiny, even if there is no suggestion that they breached Article 2[1].


Article 2(1) ECHR provides that “Everyone’s right to life shall be protected by law”.  Article 2 imposes the following duties:

The substantive duties:

i.  To refrain from taking life (negative obligations);

ii. To take appropriate steps to safeguard the lives of people within its control (positive obligations). This comprises general/systemic and operational aspects.

The investigative/procedural duties:

i.  To investigate deaths that are ‘arguably’ caused by a breach of a substantive duty.

Article 2 will be engaged in inquest proceedings where there is an ‘arguable breach’ of any of the substantive duties.

The systemic aspect of the positive obligations imposed by the substantive duties of Article 2 may be breached where there is a ‘system failure’.

The operational aspect of the positive obligations arises to prevent a ‘real and immediate’ risk to life.

What does ‘arguable’ mean?

Hickinbottom J succinctly summarised the test at Paragraph 60 of his judgment in R (AP) v HM Coroner for Worcestershire [2011] EWHC 1453 (Admin):

             “…… “arguable” is anything more than “fanciful”.  It is a low threshold”

This is the first of three blog posts on Article 2 inquests.  The other posts in the series will consider what amounts to a system failure, and in what circumstances the operational duty will arise.


[1]  R (Sreedharan) v HM Coroner for Manchester [2013] EWCA Civ 181 para 23.

Bolam v Montgomery – why there is only one reasonable body of medical opinion to questions of consent

The case of Montgomery v Lanarkshire Health Board [2015] UKSC 11 remains this year’s most important clinical negligence case. It provides that the Bolam test is not applicable to issues of consent to medical treatment.

Mrs Montgomery suffered from insulin dependent diabetes mellitus which made her more likely to have a larger baby. She was also of small stature. She fell pregnant with her first child in 1999, at which time it was known that Mrs Montgomery was at a heightened risk of experiencing shoulder dystocia as a consequence of those risk factors.

Mrs Montgomery’s was considered to be a high risk pregnancy requiring intensive monitoring, however, she was not warned of the heightened risk of shoulder dystocia, described by the defendant’s own expert witness as “a major obstetric emergency……..” Clinical negligence practitioners will be well aware that shoulder dystocia can lead to the child sustaining severe brachial plexus injuries, as well as oxygen deprivation that can cause profound brain injuries.

The evidence in the case was that the risk of shoulder dystocia occurring in cases involving diabetic mothers was 9-10%. However, the risk that a child born to a diabetic mother would suffer a brachial plexus injury was 0.2% (1 in 500). The risk of a brain injury or death from hypoxia was 0.1% (1 in 1000). The obstetrician declined to inform Mrs Montgomery of the risk of shoulder dystocia because she considered the risk of consequential injury to be very slight.

Mrs Montgomery expressed concerns about the size of her baby during pregnancy, but had not asked her obstetrician “specifically about exact risks”. Her evidence was that had she been informed of the risk of shoulder dystocia she would have asked for more information. Upon receipt of further information she would have requested a caesarean section. The obstetrician also considered that most diabetic patients would elect to undergo a caesarean section if they were in receipt of full facts, and she felt that Mrs Montgomery in particular would have elected to undergo a caesarean section.

Mrs Montgomery experienced a difficult labour. Shoulder dystocia was encountered and her child was deprived of oxygen. The child suffered both cerebral palsy and a brachial plexus injury, which would likely have been avoided had he been born by caesarean section.

There was competing expert evidence. Some experts considered it reasonable not to have discussed shoulder dystocia, others felt it was unreasonable to have failed to discuss the risk as Mrs Montgomery expressed concerns over the size of her baby.

The starting point for their Lordships was the judgment in Sidaway¹. The majority of the House of Lords in Sidaway had already expressed that the Bolam test would not necessarily apply to giving advice about treatment. However, it was also considered that a paternalistic approach of ‘too much information may be detrimental’ was entirely acceptable. There was also significance attached to whether a patient questioned the doctor about risk. The Supreme Court in Montgomery found this element of the Sidaway judgment to be “profoundly unsatisfactory”.

They went so far as to describe it as “a reversal of logic; the more a patient knows about the risks she faces, the easier it is for her to ask specific questions …….but it is those who lack such knowledge …… who are in the greatest need of information.”

Lord Kerr and Lord Reed gave the leading judgment in Montgomery in which they noted “social and legal developments point away from a model of the relationship between the doctor and the patient based upon medical paternalism……..”

Whilst there was conflicting expert evidence as to what was reasonable in the case, the Bolam test was held not to be applicable to questions of consent and risk. A doctor’s decision to discuss risks isn’t attributable to different schools of thought in medical science, but to different schools of thought in attitude towards patients.

The duty was clarified that doctors must “ensure that a patient is aware of material risk of injury that are inherent in treatment”.

But what is a ‘material risk’? At paragraph 87 of Montgomery, this is described as whether “a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonable be aware that the particular patient would be likely to attach significance to it.” It is not a question of percentages.

Thus, it appears going forward that a risk could be material if:
(i) The likelihood of a consequence occurring is very small, but the potential consequences are very serious e.g. brain damage (as with Mrs Montgomery); or,
(ii) The consequences are not particularly serious, but the likelihood of a risk occurring is greater; or,
(iii) Where the consequences are not particularly serious and where the likelihood of a risk occurring is very low, but the particular circumstances of the patient makes the risk (or the potential benefit of alternative treatment) important.

Of course, it remains the position that a high likelihood of a very serious consequence occurring is clearly a material risk.

There remains the ‘therapeutic exception’; that a risk should not be disclosed if a doctor reasonably considers that doing so would be “seriously detrimental to a patient’s health”, but, except in circumstances where there is a need to urgently commence treatment such that there is no time to inform a patient of risks, it is difficult to envisage a typical situation in which this exception could be applied.

Montgomery is a decision that is likely not only to assist claimants, but potentially to change attitudes towards patients within the medical profession.

¹ Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] UKHL 1

The New Clinical Negligence Pre-Action Protocol

The pre-action protocol for the resolution of clinical disputes has changed, along with several other pre-action protocols.  The changes came into force on 6 April 2015.  At the present time you will not find the new protocol easily on the MOJ website (the previous protocol is most easily located), but you will find it here from page 40 onwards:

A summary of the most notable changes follows:

1.  ‘Letter of Notification’

A new creation features at paragraph 3.10 of the protocol.  Following the medical records stage and (in many cases) receipt of an “initial supportive expert opinion”, and prior to the letter of claim, the claimant “may wish to” send a letter of notification to the defendant and NHSLA or relevant defence organisation.

On receipt of any letter of notification the defendant should:

  1. Acknowledge receipt within 14 days;
  2. Identify who will be dealing with the matter and to whom any Letter of Claim should be sent;
  3. Consider whether to commence investigations and/or obtain factual and expert evidence;
  4. Consider whether any information could be passed to the claimant which might narrow the issues in dispute or lead to an early resolution of the claim; and
  5. Forward a copy of the Letter of Notification to the NHSLA or other relevant medical defence organisation/indemnity provider.

Diligent NHS trusts often commence their own legal investigation during the NHS complaints procedure, or upon receipt of a request for medical records which contains sufficient detail to enable them to understand the issues which the claimant is seeking to pursue.

However, whilst the protocol provides that the prospective defendant should merely ‘consider’ commencing their own investigation and gathering evidence, the benefit to the claimant in sending a letter of notification may come further down the line.  Paragraph 3.12.2 of the protocol provides that the court may question any request by the defendant for an extension of time if a letter of notification was sent but did not prompt an initial investigation.

A template letter of notification is supplied at annex C1 of the protocol.

2.  Letters of Claim and Letters of Response

Letters of claim and letters of response should now state which disciplines of expert evidence have been relied upon.  Curiously, the letter of response should also state whether the expert report relates to breach of duty or causation, or both.  There is no such provision requiring the claimant to provide this additional detail.

3.  Stocktake

Another new creation is the ‘Stocktake’ which features at paragraph 6.1.  In short, after the other steps of the protocol have been followed, “the parties should review their positions before the claimant issues court proceedings”.  It is hard to imagine that representatives will not think about their case if resolution cannot be achieved pre-action!

The second, final, and almost certainly the most important provision of the stocktake comes at paragraph 6.1.2.  It provides that the parties should seek to prepare a chronology of events which identifies the facts or issues that are agreed and the extent of any disputed facts and issues.

4.  Duty of Candour/Apologies

A new stated aim of the protocol appears at paragraph 2.2(b):

“to provide an opportunity for healthcare providers to identify whether notification of a notifiable safety incident has been, or should be, sent to the claimant in accordance with the duty of candour…………”

In short, the consideration of a claim at the pre-action stage affords the defendant a further opportunity to consider if an “unintended or unexpected incident” resulting in harm has occurred.  If such an incident has occurred then ‘the duty of candour’[1] provides that all of the facts should be given to the patient about the event and that an apology should be forthcoming.   This could greatly assist the claimant in pursuing their claim.

It is of course a criminal offence for the health service body not to notify the patient of the safety incident and offer an apology.  

Encouraging the offering of an apology is mentioned again, this time outside of the obligation under the duty of candour at paragraph 2.2(l).  To my mind an apology is distinct from an admission or finding of breach of duty and the payment of damages, which are really the only functions of a tortious claim.  It is certainly noteworthy that the protocol encourages the defendant to go further than their ordinary tortious obligations.

5.  Litigants in Person

Claimants and defendants do from time to time act as a litigant in person.  Paragraph 1.8 provides that a litigant in person will be expected to follow the protocol, however, the represented party should send a copy of the protocol to the litigant in person as soon as possible.

6.  ADR

Arbitration is mentioned as a possible alternative to litigation in relation to clinical disputes for the first time.  More longstanding alternatives of mediation and early neutral evaluation are rarely utilised and it is hard to imagine that arbitration will be any more popular.

There are numerous other amendments and additions, but the above outlines those which I consider to be the most significant.

[1] Regulation 20(4) of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014

New Part 36 Rules – What’s Changed?

Part 36 of the Civil Procedure Rules has been amended once more, with all offers made on or after 6 April 2015 subject to the new regime.  But what do the new rules entail?

1.   Time Limited Offers

CPR 36.9(4)(b) now permits an offer to be “automatically withdrawn in accordance with its terms” after the end of the relevant specified period of acceptance.

This marks a departure from the previous rule 36(3)(6) which provided that any withdrawal of an offer must be communicated after the end of the specified period of acceptance.

Offers with terms now expressed as ‘this offer shall remain open for acceptance for a period of 21 days, after which time it is automatically withdrawn’ are now valid in their entirety.  No further steps need be taken to formally withdraw the offer after the end of the relevant period.

Note however that the new rule 36.9(4)(b) does not provide that all offers are automatically withdrawn after the end of the specified period.  It merely provides that stating that an offer is subject to automatic withdrawal is now permitted.

2.  Improved Offers

CPR 36.9(5) provides that where the offeror changes the terms of a Part 36 offer to make it more advantageous to the opposing party, such an offer will be regarded as a new offer rather than a withdrawal or amendment of the original offer.

A series of distinct improved offers remain regarded as multiple offers, any one of which may be accepted, and attract costs consequences, if not withdrawn. The former rule 36.7(2) provided that a change in terms of a specific Part 36 offer was an amendment to one offer.

The new rule 36.9(5) provides that communication of improved terms of a Part 36 offer in fact creates two offers that remain open until withdrawal or acceptance.

3.  Late Acceptance

CPR 36.14(5) provides that where a Part 36 offer is accepted outside of the specified period, the court must make an order that the accepting party pays the costs from the end of the specified period up to acceptance, unless it would be unjust to do so.

The previous rules simply provided that the usual order would be made ‘unless the court ordered otherwise’, leading to some to consider that this provided for a broad discretion.

4.  Split Trials

CPR 36.16 now permits a Judge hearing the trial of a preliminary issue to be told of the existence of any Part 36 offer, but not necessarily its terms.

Under the previous regime, a Judge had to decide whether to make a costs order in respect of the trial of a preliminary issue in ignorance of the existence of any Part 36 offer that had been made to compromise that issue, if that offer also contained proposals to compromise the entire claim.

The new rule permits a Judge to be told of the existence of all offers when deciding costs of trials of a preliminary issue.  A Judge may be told of the terms of the offer where that offer is confined to the compromise of the preliminary issue.  The rule will apply to all split trials taking place on or after 6 April 2015, even if the offer was made prior to this date.

5.  Genuine Attempts to Settle

Rule 36.17 replaces the previous rule 36.14 on costs consequences following judgment.  In considering whether it would be unjust to make the usual costs award, 36.17(5)(e) “whether the offer was a genuine attempt to settle the proceedings” is now a factor.

This new criterion appears to be designed to disincentivise very high claimant offers; an attempt to compromise the claim is unlikely to be regarded as genuine if it does not account for some litigation risk[1], unless the evidence is very strong in all heads of claim.

6.  Failing to File Costs Budgets

It remains the case under rule 3.14 that where a costs budget is not filed in time, a litigant may be treated as having filed a budget limited to court fees only.

Rule 36.23 provides an incentive for an offeree to settle where the offeror has been made subject to an order limiting their costs to court fees only.  Where the defaulting offeror has made a Part 36 offer that is accepted late, the offeror shall be entitled to recover 50% of any costs incurred after the expiry of the relevant period.

7.  Appeals and Counterclaims

CPR 36.2(3) has brought clarity to the position faced by counterclaimants and claimants in additional claims.  The new rule provides that counterclaimants and claimants in additional claims may receive the benefit of the more favourable costs consequences of claimant Part 36 offers, even when they are not the named claimant in the primary action.

Whilst the previous rules provided that Part 36 offers could be made in appeal proceedings, there is now more detail as to how the rule is to be applied.  In particular a claimant/defendant in first instance Part 36 offers shall equate to appellant/respondent respectively.  It is anticipated that where there are cross-appeals, it will be possible for a respondent to make a claimant Part 36 offer in the same way as the new rule operates for counterclaims.

[1]  AB v CD [2011] EWHC 602 (Ch)