In Onay v Brown  EWCA Civ 775, the Defendant car driver admitted liability and consented to the entry of judgment against him, the sole remaining issue on liability being whether the Claimant motorcyclist was speeding and/or failing to keep a proper lookout and was therefore contributorily negligent.
25 days before trial the Defendant offered to settle on the basis that the Claimant motorcyclist was one third to blame. The next day, the Claimant made a Part 36 offer to settle for 10% contrib. On the same date, the Defendant made a revised offer of 25% contrib. Four days later, the Claimant upped his offer to 15% contrib. and 3 days after that (now 17 days before trial), the Claimant upped his offer again to 20% contrib. A week before trial, the Claimant accepted the Defendant’s offer.
The case was decided on the narrow issue that the offer had been accepted within 21 days and by virtue of CPR Part 36.10(1) the Claimant was entitled to his costs, but the court also dealt with the broader submission by the Defendants that Fleming v Chief Constable of Sussex Police required the Court to determine who is the party who has really won.
The Court held
1. If contributory negligence is still in issue, a trial judge could make a finding anywhere between 10% and 90% against the Claimant.
2. Since the Claimant had achieved a 75/25 result in his favour, it was unrealistic to describe the Defendant as a winner.
So in a case where the Defendant correctly assesses the level of contributory negligence and the Claimant incorrectly assesses it (in some cases even denying that there has been any contrib), the Claimant has to be seen as the winner and is entitled to his costs….
The court rejected the submission from the Defendant that it could not protect itself. It observed that the Defendant could make an early and reasonable Part 36 offer. That is true. If a claimant were to accept late, Part 36.10 (5)(b) would make the claimant pay the costs from 21 days after the offer until the date of acceptance.
It often happens, for example in employer’s liability cases, that defendant insurers decide to take a punt-perhaps they will defeat liability completely, or if not, they will achieve a finding of at least 50% contrib. So I understand the point entirely that the trial judge’s starting point should be: why shouldn’t I give the claimant his costs?
But should it be his ending point?
How often do you get this sort of scenario in serious road traffic accidents: the defendant admits primary liability but alleges contrib. which the claimant denies. He says, wrongly, that he is fairly sure he was wearing a seatbelt and in the alternative that if he wasn’t, it made no difference to his injuries. The defendant’s evidence suggests that the injuries would have been avoided if the claimant had been wearing a seatbelt. In other words they have a sound basis for asserting 25% contrib. In the spirit of compromise they put forward 20% offer, being the mid-point between the Froom v Butcher levels of 15% and 25%. At trial, the court finds that the claimant was not wearing his seatbelt, that his injuries would not have been the same as he contends, but they also would not have been avoided completely as the defendant contended. Judgment for the lower Froom v Butcher level of 15%.
How is it that the claimant is getting his costs paid in these circumstances? What is it that he has won? On the only two issues he put forward, he has lost. The defendant has borne the legal burden of proof that there was contrib. and has discharged that burden. The defendant may have not won everything, but making him the paying party is really applying the lash. Surely, at a minimum, there should be no order for costs from the date of the defendant’s 20% offer?
Not surprisingly, the trial judge in Sonmez v Kebabery Wholesale Limited  EWCA Civ 1386, who was not referred to Onay, also he thought he could characterise the defendant as the winner. In that case, 23 weeks before trial, the Claimant made a Part 36 offer to settle for 100% liability. 9 weeks before trial Defendant made a part 36 offer to settle for two thirds/one third in favour of Claimant and two weeks before trial upped that to 75/25.
The trial judge split liability 80/20 and he made the Claimant pay the Defendant’s costs. The Court of Appeal held that in a fully contested trial, contributory negligence would not be treated as a separate issue and that they were bound by Onay.
Counsel submitted that the Claimant’s failure to make any offer to settle other than on the (wrong) basis of 100% was intransigent and conduct which it was relevant for the Court to take into account, but the Court of Appeal held that on facts of this case, the Claimant was not unreasonable not to negotiate.
Wherefore art thou, o level playing field?