Background
JBX, suing through his mother and litigation friend, obtained damages from Frimley Health NHS Foundation Trust. The damages were assessed at £4,341,302.86, including £950,000 in interim payments and allowing for CRU payments, together with substantial periodical payments. The principal issue at the eight-day trial had been whether JBX’s proposed domiciliary-care arrangements met his reasonable needs. The Trust prevailed on that issue, while JBX succeeded on a disputed lost-years claim.
Neither party made a Part 36 offer. The Trust made an offer shortly before trial that was closer to the final outcome than JBX’s last offer, but much of the litigation cost had already been incurred. Following judgment, the parties agreed most consequential matters, leaving the allocation of costs for determination.
The Court’s Holding
The High Court ordered the Trust to pay 85% of JBX’s costs on the standard basis, subject to detailed assessment if not agreed. Although JBX lost the principal dispute over future care and accommodation, he remained the successful party overall because he had secured a substantial damages award.
A departure from the usual costs-follow-the-event rule was warranted to reflect the Trust’s success on the issue that occupied most of the trial. But the court rejected the Trust’s proposed order limiting recovery to 75% of costs incurred before 17 February 2026 and making no order thereafter. It was reasonable for JBX to pursue domiciliary care to trial, the Trust’s case against that arrangement became unambiguous only in February 2026, other quantum issues remained unresolved until shortly before trial, and the Trust had made no Part 36 offer protecting its position.
Key Takeaways
- A claimant who secures substantial damages may remain the successful party for costs purposes despite losing the principal issue tried.
- Losing a major issue can justify a percentage reduction in recoverable costs, but the court must assess all the circumstances rather than apply an automatic issue-based rule.
- A defendant seeking costs protection should ordinarily use Part 36; late non-Part 36 offers may carry limited weight once most costs have already been incurred.
Why It Matters
The decision illustrates the broad discretion available under CPR 44.2 when overall success and success on the principal disputed issue point in different directions. The court used a broad-brush percentage order to recognize both JBX’s substantial recovery and the Trust’s victory on future care and accommodation.
It also underscores that litigation conduct or failed arguments will affect costs only to the extent justified by their practical consequences. Here, the parties’ mutual criticisms carried little weight because they had not meaningfully increased costs, while the absence of a Part 36 offer substantially weakened the Trust’s request for greater protection.