A Stitch In Time? Revisiting The "Relevant Period" Under CPR Part 36

• Published date: 02 August 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Gatehouse Chambers
• Author: Ms Charlotte Wilk

In Mrs Halima Begum (A Protected Party by her Litigation Friend Mr Farid Akhtar) v Barts Health NHS Trust [2022] EWHC 1668 (QB) it was held that the court has no jurisdiction to extend the 'relevant period' under CPR Part 36.

Background

The Claimant in this case alleged a negligently delayed diagnosis in early 2017 and expert evidence was commissioned. In pre-action correspondence, the Defendant admitted breach of duty but denied causation. On 3 March 2022, the Defendant made a Part 36 offer of '100,000 gross of recoverable benefits ('the Offer'). The Offer expressly stated that the Defendant would be responsible for the Claimant's costs if accepted within 21 days of service; if the Offer were to be accepted any time after 24 March 2022, then 'liability for costs must be agreed between the Parties or decided by the Court'.

This judgment concerned a pre-issue application ('the Application') by the Claimant to the court that (i) time for acceptance of the Offer dated 3 March 2022 is extended to 24 November 2022 and (ii) if the Offer is accepted by 24 November 2022, the Defendant will be responsible for the Claimant's costs in accordance with CPR 36.13. The usual rule is that the claimant pays the defendant's costs if the offer is later accepted (or not beaten at trial); the claimant must show that the usual order 'would be unjust' (CPR 36.17(5)) in order for the court to depart from it.

The Application raised an important issue concerning the court's jurisdiction. The Defendant denied any such jurisdiction. The Claimant relied upon comments in RXL (a protected party by her litigation friend) v Oxford University Hospitals NHS Foundation Trust [2021] EWHC 1349 (QB) and the power of the court under CPR 3.1(2)(a) to shorten or extend the time for compliance with 'any rule, practice direction or court order'. The Claimant's solicitor considered that it was not possible to quantify the claim without further expert evidence to determine causation issues and condition and prognosis, particularly because the Applicant is a protected party.

The decision in RXL

This was a decision in which the Claimant (a Protected Party) had accepted a Part 36 offer after the relevant period but sought to persuade the court that it should exercise its discretion pursuant to CPR 36.13(4)-(6) and depart from the usual order. David Pittaway QC, sitting as a High Court judge, refused the Claimant's application on the basis that the Claimant's legal advisors had sufficient information...