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Louis Browne QC from Temple Garden Chambers has successfully acted for the Ministry of Defence in a High Court costs case.
In Allan Campbell v Ministry of Defence (2019) the Court was required to determine who should pay the costs of litigation following the claimant’s late acceptance of a Part 36 offer.
The claimant was a member of the armed forces. During a flight to Afghanistan the aircraft he was travelling in entered into a sharp descent, plummeting 4,400 feet due to the pilot’s negligence. The claimant suffered psychiatric injury, specifically a severe phobia of flying. The MoD admitted liability in January 2016. On 5 January 2018, the MoD made a part 36 offer of £100,000, with the relevant period expiring on 30 January 2018. That period was extended on agreement until 19 February 2018. The claimant did not accept the Part 36 offer until 13 months later on 22 March 2019.
The issue for the Court was whether the normal costs rule applied, namely that the claimant was to be awarded his costs up to 19 February 2018 and after that the defendant was entitled to its costs.
The claimant argued that the offer had been made a time when his future losses could not be quantified as it was not known at that time that he would be commissioned and promoted. He submitted that if he could not be commissioned because of his phobia of flying then his claim would be worth significantly more than £100,000. Although no stay had been sought, the claimant said that a stay had effectively been obtained as there had been a delay in the exchange of expert reports until after the commission process had been completed in 2018. He maintained that only when all those matters in the claim had been completed could he decide whether to accept the Part 36 offer.
Louis Browne QC, for the MoD, submitted that there was nothing unusual about a Part 36 offer being made before the evidence had been finalised, that there had been no stay as steps in the litigation had continued and that the claimant could have tested the merits of the Part 36 offer, for example, deploying the psychiatric evidence already available to him.
Ruling in favour of the MoD and applying relevant case law, Mrs Justice Lambert found that there was no reason to depart from the usual costs rule following late acceptance of a Part 36 offer that a claimant should be awarded his costs up to the date on which the offer expired, with the claimant to pay the defendant’s costs from the period from the date of expiry of the offer to the date of acceptance.
Louis Browne QC was instructed by BLM.
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