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Raggett v The Governors of Preston Catholic College, High Court, 21 December 2012

8 January 2013
The issues

Costs – Part 36 – whether claimant should be liable to pay defendant’s costs – SG v Hewitt.

The facts

The claimant had brought a claim in respect of historic sexual abuse which he had suffered some 35 years before. The matter had gone to the Court of Appeal on issues of liability and limitation when the defendants had been unsuccessful. In November 2012, the High Court handed down judgment on quantum and awarded the claimant damages in the sum of £54,923.03. In June 2009, shortly after the first instance judgment on limitation and liability, the defendant made a Part 36 offer in the sum of £350,000. That offer was not withdrawn. On the 20 December 2011, the defendants made an increased Part 36 offer of £500,000. That offer was withdrawn on the 23 January 2012. On the 9 January 2012, the claimant made an offer in the sum of £1.25 million. On the 9 February 2012 the offer was reduced to £1 million. Following the quantum judgment, the defendant became entitled to costs unless the court considered the order unjust, with him entitled to costs from the date on which the relevant period for acceptance of the offer expired. CPR 36.14(4) provided that when considering whether it would be unjust to make an order for costs, the court should take into account all the circumstances of the case, including the terms of any Part 36 offer, the stage in the proceedings when the offer was made, the information available to the parties at the time when the offer was made, and the conduct of the parties with regard to the giving or refusing of information for the purposes of enabling the offer to be made or evaluated.

By the time that trial took place, the differing positions of the adult psychiatrists on the issue of causation had been clearly defined

The claimant argued that it would be unjust for the usual order to be made on the basis that at the time the offer was made, the value of the claim could not reasonably have been assessed. The claimant held a sincere belief that the abuse to which he had been subjected had been the cause of all the adverse events which had occurred to him in his employment and personal life. The claimant argued that a detailed investigation of the quantum issues was necessary after the limitation and liability trial and that this process had been interrupted by the defendant’s unsuccessful appeal to the Court of Appeal and unsuccessful application for permission to appeal to the Supreme Court. The claimant said that it was not until December 2011, until the adult psychiatrists had completed their second joint statement, that the claimant’s advisors were in a position reasonably to assess the value of their claim, and that it would be unfair if a claimant were to be deprived of the costs of investigating his claim properly. They relied on SG v Hewitt, a case involving an infant claimant, in which the Court of Appeal had considered that the judge had erred in attaching too little weight to the fact that at the time the offer had been made in that case, that the claimant’s medical prognosis was so uncertain that counsel could not properly have advised for the purposes of obtaining the court’s approval.

The decision

The claimant was at all material times an adult of full capacity. The psychiatric evidence had been prepared in advance of the limitation of liability hearing. By the time that trial took place, the differing positions of the adult psychiatrists on the issue of causation had been clearly defined. Both experts had given evidence at the liability and limitation hearing in accordance with their reports. Their views were not materially different then from those expressed at the quantum hearing three years later.

The claimant had given evidence at the hearing and whilst his evidence as to abuse had been accepted, the court had made it clear that issues about his reliability in relation to other matters would arise. Moreover, in that first judgment, the court had drawn attention to the difficulties that the claimant would face more than 35 years after the occurrence of the sexual abuse, in proving the necessary causal links. Those difficulties should have been evident to him and his advisors.

By the time of the limitation and liability trial, the claimant’s advisors already had a good deal of information about the claimant’s various periods of employment with different solicitors firms and the claimant had himself in his possession appraisals and other documents from those firms casting doubt on his assertions that his failure to obtain Partnership had been solely attributable to a psychiatric condition caused by abuse. By the time the Part 36 offer was made, the claimant and his advisors had ample information on which to make an assessment of the risks associated with the litigation. The facts were very far from those in SG. No Order for set-off would be made given the involvement of ATE insurers. An interim order for costs would be made of £200,000. The ordinary consequences of Part 36 would not be departed from and the claimant should bear the defendant’s costs after the 25 June 2009.

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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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