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Painting v University of Oxford, Court of Appeal, 3 February 2005

4 March 2005
The issues

Costs – Entitlement Of Claimant To Costs Where Payment Into Court Beaten But Claimant Awarded Substantially Less Than That Claimed – Intentional Exaggeration Of Claim – Enquiry Agent’s Evidence – Surveillance

The facts

The Claimant was employed by Oxford University in an administrative capacity. On 1st June 1999 she had an accident when she fell from a ladder which she was using to take a file from a high shelf. She suffered back, head and pelvic injuries. Her most serious injury was to her back. In May 2002 she started proceedings against her employer. Liability was admitted but contributory negligence asserted. An agreed deduction of 20% was arrived at between the parties and in February 2003 Judgment was entered. The Claimant’s claim was pleaded at £500,000.00. In February 2004 the Defendant paid into Court £184,442.91. After the Payment into Court the University or its advisors realised that it had significant video evidence which undermined Mrs Painting’s case. They therefore issued an application to withdraw all but £10,000.00. That application was granted subject to an Order that the University pay the Claimant her costs of the Application.

The Claimant had alleged that her back injury was debilitating and prevented her from working again. The University contended that she was exaggerating her symptoms. The video evidence persuaded the joint instructed medical expert to revise his opinion in the Defendant’s favour. The Recorder at Trial found that the Claimant had misled the expert and that she was exaggerating her injuries. He found she had made an effective recovery for purposes of loss of earnings by 2002/2003 (and not 2000 as the University alleged).

She was awarded £31,664.73 discounted with the liability discount to £25,331.78. The Defendants argued before the Recorder that notwithstanding that the Claimant had beaten the Payment into Court because she had misled the Court and there should be a departure from the usual rule that the unsuccessful party pay the successful parties’ costs. The Recorder rejected this application. The Defendant appealed.

The decision

1. The Trial Judge had a wide discretion as to costs. The Court would only interfere if the Trial Judge had exceeded the generous ambit within which reasonable disagreement would have been possible (Tanfern v Cameron McDonald).

2. The Defendant had argued that they should be entitled to a more beneficial costs order because they had been placed in a very difficult position by an exaggerating Claimant. There was however nothing unusual about a difficulty in calculating to a nicety the amount of an eventual award. What the University had done was to make a Part 36 Payment on a “rock bottom figure”. It could have pitched the payment higher without weakening its position on the essential issue in the case.

3. However, asking the question “who was the real winner in this litigation?” there was only one answer. The two day hearing was concerned overwhelmingly with the issue of exaggeration and the University won on that issue. In addition there was a strong likelihood that but for exaggeration this claim would have settled at an earlier stage and with modest costs.

4. A further point was that at no stage had the Claimant shown any willingness to negotiate or put forward a counter proposal to the Part 36 Payment. Whilst no Claimant could be compelled to take such steps to contest and lose an issue of exaggeration without ever having made a counter proposal is a matter of significance in this kind of litigation. It should not be assumed that beating a Part 36 Payment is conclusive. It was a factor and would often be conclusive but the Court had to have regard to all the circumstances of the case.

5. In the circumstances the Recorder’s order fell outside the “generous ambit”. The University would pay the Claimant’s costs down to 25th February 2004 (the day after the University was granted permission to withdraw all but the £10,000.00 from its payment into Court) and the Claimant would pay the Defendant’s costs thereafter.

Appeal allowed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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