Earlier in the year we highlighted Master McCloud’s judgment in JLE (a child) v. Warrington & Halton Hospitals NHS Foundation Trust [2018] EWHC B18 (Costs).

Subsequently the Claimant, who was disallowed an additional award of 10% of the awarded costs under CPR 36.17(4)(d), has successfully appealed the judgment.

Mr Justice Stewart concluded that Master McCloud had erred in taking into account several factors that led her to conclude that awarding the additional 10% would be unjust, in particular the Master should not have considered that the Part 36 offer had only been beaten by a relatively small amount.  

Mr Justice Stewart added that, whilst he accepted that the Part 36 awards under CPR 36.17 were severable, it was wrong to allow disallow the extra 10% in isolation, noting:

“I do not accept that in these circumstances it is open to the court to say that it would be unjust to make an award under (d) but not under (a)-(c). The perceived injustice would then be based on the prescribed amount of the award, which is an impermissible basis.“

During the appeal hearing, Mr Justice Stewart also heard argument as to whether or not the percentage of award under CPR 36.17(4)(d) could be reduced. Whilst no formal ruling was made (because the Judge ultimately declined to allow the Claimant to add the argument to their grounds of appeal), Mr Justice Stewart expressed his obiter view that this was an “all or nothing” award.